UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


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GENERAL   EDITOR 

CHARLES  H.  HASKINS 

Professor  of  History  in  Harvard  University 


66 


CONSTITUTIONAL 
HISTORY  OF   ENGLAND 


BY 
GEORGE  BURTON  ADAMS,  Ph.D.,  Litt.  D. 

PROFESSOR  OF  HISTORY,   EMERITUS,   IN  YALE  COLLEGE 


NEW  YORK 
HENRY  HOLT  AND  COMPANY 


3^2,81 


COPTBIOHT,    1921 

BY 

HENRY  HOLT  AND  COMPANY 


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PREFACE 

I  have  endeavored  in  writing  this  book  to  keep  constantly 
in  view  the  needs  of  the  general  reader  and  of  the  college 
student.  I  have  to  join  in  the  recurring  lament  of  those 
who  attempt  to  write  a  small  book  on  a  large  subject  that 
they  are  obliged  to  omit  so  many  details  and  that  the  task 
of  selection  is  so  difficult.  In  this  book  I  have  especially 
regretted  the  fact  when  I  have  thought  it  necessary  to  omit 
details  which  one  teacher  of  English  history  or  another  has 
urged  me  to  include.  It  seemed  to  me  certain,  however,  that 
the  chief  thing  to  keep  always  in  mind  was  to  make  the  con- 
tinuous growth  of  the  constitution  from  generation  to  gene- 
ration as  clear  as  possible.  Details  in  this  line,  or  which 
help  to  make  it  clear,  must  be  included.  Details  which  are 
not  in  the  direct  line  may  be  omitted,  if  space  demands,  and 
must  be  if  their  inclusion  would  tend  to  confuse  the  larger 
view.  I  am  sure  that  some  teachers  will  not  agree  with  my 
selection,  but  they  will  not  find  it  a  disadvantage  that  con- 
siderable opportunity  is  given  for  the  expansion  of  the  nar- 
rative by  the  teacher.  I  believe  the  book  will  be  found  to 
include  those  matters  which  all  teachers  agree  are  essential. 

It  will  be  especially  useful,  I  think,  to  expand  the  Intro- 
duction into  a  more  full  description  of  the  present  English 
government,  in  order  that  the  student  may  know  from  the 
beginning  "  how  the  play  is  going  to  end,"  and  what  the 
important  differences  are  between  the  American  and  English 
constitutions.  It  is  desirable  also  tflbt  the  student  should 
be  well  grounded  in  English  political  history,  which  is  here 
taken  for  granted,  or  that  he  should  follow  the  account 
closely  in  some  manual  of  the  political  history. 

I  wish  to  acknowledge  my  especial  indebtedness  to  the 


PREFACE 

kindness  of  the  Yale  University  Press,  the  publishers  of  my 
Outline  Sketch  of  English  Constitutional  History,  for  per- 
mission to  use  parts  of  that  book  in  the  present  one.  The 
important  steps  in  the  development  and  the  results  are  indi- 
cated there,  and  that  book  will  be  found  valuable  for  review 
and  for  a  summary  statement.  I  am  also  greatly  indebted 
to  many  scholars  who  have  made  me  valuable  suggestions 
and  especially  to  Professors  A.  L.  Cross  of  Michigan, 
Wallace  Notestein  of  Cornell,  and  R.  L.  Schuyler  of  Colum- 
bia Universities,  as  well  as  to  Professor  C.  H.  Haskins  of 
Harvard  University,  the  general  editor  of  the  American  His- 
torical Series.  I  am  sorry  that  I  have  not  had  the  advan- 
tage of  Professor  A.  F.  Pollard's  Evolution  of  Parliament, 
which  is  not  yet  available  here. 

G.  B.  A. 
New  Haven, 

October  16,  1920. 


CONTENTS 

CHAPTER  VAOZ 

General  Bibliography       ........  ix 

Introduction i 

I    The  Anglo-Saxon  Age 5 

II     The  Norman  Conquest 5Q 

III  The  Norman  Period 77 

IV  Centralization  and  Law 98 

— V — The  Grea-t-Ghartjer . — r — t"*~~.     \     '.     '.     7~~TTr 

VI^Tjrowth    ol     11111    Constitution    anb-uf   the 

Common  Law 144 

VII     The  Origin  of  Parliament 169 

VIII     The  Growth  of  Parliament 192 

IX     Premature  Constitutional  Government  .      .216 

X    The  Tudor  Strong  Monarchy 240 

XI     Parliament  Versus  the  King 265 

XII     King  without  Parliament 287 

XIII  The  Victory  of  Parliament 309 

XIV  The  Victory  Confirmed 334 

XV    The  Making  of  the  Cabinet 362 

XVI     The  Growth  of  the  Cabinet 383 

XVII     The  Rise  of  Democracy 410 

XVIII     The  Age  of  Reform    ,_  ,     .  -  .      .  434 

XIX     Democratic  England 463 

XX    The  Recent  Years 486 

Index 505 


GENERAL  BIBLIOGRAPHY 

Of  the  compendious  general  histories  of  the  English  con- 
stitution, T.  P.  Taswell-Langmead's  is  the  most  satisfactory 
on  the  whole  for  American  use,  but  numerous  revisions  have 
affected  practically  only  the  most  recent  periods,  and  much 
of  the  narrative  depends  too  exclusively  on  the  statutes. 
Its  great  advantage  is  that  it  presents  a  continuous  chronol- 
ogical account  and  that  the  detail  is  full.  D.  J.  Medley's 
is  more  accurate  in  the  earlier  portions  and  has  been  kept 
abreast  of  recent  legislation,  but  it  treats  the  subject  top- 
ically rather  than  in  its  chronological  development.  F.  W. 
Maitland's  is  based  on  the  lectures  given  by  Professor  Mait- 
land  at  Cambridge  in  1887  and  1888,  and  is  full  of  sugges- 
tion for  the  teacher.  It  presents  the  subject  in  cross  sec- 
tions at  five  important  epochs.  J.  Hatschek's  Englische 
Verfassungsgeschichte  is  valuable  as  giving  the  views  of  a 
foreign  scholar  and  treats  of  many  topics  not  usually  cov- 
ered elsewhere.  It  has  full  bibliographies.  R.  Gneist's 
History  of  the  English  Constitution,  translated  by  P.  A. 
Ashworth,  is  still  useful,  especially  for  facts  not  commonly 
given.  J.  A.  R.  Marriott's  English  Political  Institutions, 
though  concerned  chiefly  with  present  institutions,  is  helpful 
in  tracing  their  historical  antecedents. 

More  detailed  on  the  general  subject,  or  on  special  features 
of  it,  are  William  'Stubbs  Constitutional  History  of  England, 
in  3  volumes  to  1485,  which  should  be  used  with  the  two 
supplements  by  Petit-Dutaillis  published  in  translation  by 
the  Manchester  University  Press.  Henry  Hallam,  from 
1485  to  1760,  is  still  helpful  in  many  details  and  has  been  con- 
tinued by  T.  E.  May  to  1860,  and  May  in  a  third  volume 
by  F.  Holland  to  1911.  F.  W.  Maitland's  Collected  Papers 
should  be  used  on  a  number  of  topics.  The  special  histories 
of  law,  Pollock  and  Maitland,  2  volumes,  to  the  beginning 


x  GENERAL  BIBLIOGRAPHY 

of  the  fourteenth  century,  and  W.  S.  Holdsworth,  3  volumes, 
for  the  whole  history,  c*md  the  Select  Essays  in  Anglo-Amer- 
ican Legal  History,  3  volumes,  are  of  constant  help,  as  are 
also  F.  Makower's  Constitutional  History  of  the  Church  of 
England,  W.  Cunningham's  Growth  of  English  Industry  and 
Commerce,  and  E.  Lipson's  Economic  History  of  England. 
The  general  political  histories,  that  edited  by  W.  Hunt  and 
R.  L.  Poole,  in  12  volumes,  that  by  Charles  Oman  in  7  vol- 
umes, and  the  Cambridge  Modern  History  in  13,  give  much 
constitutional  information  and  contain  valuable  bibliogra- 
phies. C.  Gross's  Sources  and  Literature  of  English  His- 
tory to  1485  should  be  constantly  consulted  for  bibliograph- 
ical assistance. 

The  chapter  bibliographies  that  follow  are  not  intended 
to  be  complete  but  are  in  general  limited  to  the  most  recent 
books  and  articles  and  to  those  having  a  special  relation 
to  the  subjects  of  the  chapter.  For  the  medieval  period 
they  should  be  supplemented  by  Gross  and  for  the  modern 
by  the  bibliographies  in  the  general  histories  named. 

ABBREVIATIONS 

A.  and  S.  Adams  and  Stephens,  Select  Documents  of  Eng- 

lish Constitutional  History.     1901. 

A.  H.  R.  American  Historical  Review. 

Cheyney,  Readings.  E.  P.  Cheyney,  Readings  in  English  History  from 
the  Original  Sources,     n.  d. 

E.  H.  R.  English  Historical  Review. 

Gardiner,  Documents.  S.  R.  Gardiner,  Constitutional  Documents  of  the 
Puritan  Revolution.     1906. 

G.  and  H.  Documents   Illustrative   of  English  Church   His- 

tory.    1896. 

Penn.  Translations  and  Reprints,  University  of  Penn- 

sylvania. 

Prothero,  Documents.  G.  W.  Prothero,  Select  Statutes  and  Constitu- 
tional Documents.     1558-1625.     1913. 

Rohertson,  Statutes.       C.    G.    Robertson,    Select    Statutes.     Cases    and 

Documents.     1919. 
Stubbs,  S.  C.  W.  Stubbs,  Select  Charters.    Ed.  H.  W.  C.  Davis. 

1913. 


INTRODUCTION 

When  William,  duke  of  the  Normans,  set  up  his  tent  on 
the  battlefield  of  Hastings  from  Avhich  the  Saxons  had  been 
driven  beyond  power  to  rally,  one  of  the  great  transforma- 
tions of  history  had  begun.  For  what  was  decided  in  that 
one  day's  fight  was  not  so  much  who  should  be  king  of  that 
little  island  realm,  then  scarcely  larger  than  the  state  of 
New  York  and  much  below  the  world's  standard  of  advance- 
ment. Nor  was  the  chief  question  at  stake  whether  England 
should  remain  cut  off  from  the  ancient  sources  of  civilization, 
and  live  out  her  history  touching  and  touched  by  the  larger 
currents  of  world  affairs  as  little  as  her  close  relatives  the 
Scandinavian  states.  The  really  great  decision  of  that  day 
was  that  a  union  should  take  place  between  two  peoples 
that  should  awaken  a  new  constitutional  life  of  which  neither 
alone  seemed  capable.  Within  a  generation,  quite  as  early 
as  we  can  detect  signs  of  the  uniting  of  the  two  peoples,  we 
find  the  beginnings  of  that  new  growth  under  a  government 
which  was  an  almost  ideally  complete  absolutism,  and  from 
that  day  to  this  without  a  break  that  growth  has  gone  on 
to  ever  larger  results  and  to  ever  broadening  influence  upon 
the  world.  In  the  seventeenth  century  the  line  of  progress 
divided  into  two  branches,  each  developing  a  distinct  type 
of  government,  but  each  drawing  its  special  characteristics 
and  all  its  life  and  power  of  growth  from  the  main  trunk. 

One  retained  the  office  of  king:  the  other  in  the  simpler 
conditions  of  colonial  life  established  republican  government, 
and  thus  was  created  the  most  striking  difference  between 


2  INTRODUCTION 

them.  But  if  we  compare  their  constitutions  in  detail,  we 
find  other  marked  differences  in  the  working  out  of  what 
are  now  in  both  branches  democratic  governments.  To 
state  in  brief  the  side  with  which  we  are  less  familiar:  In 
England  the  executive  is  not  elected  by  the  people  but  is  in 
form  appointed  by  the  king:  in  reality  he  is  selected  from 
the  leaders  of  the  party  which  has  the  majority  in  the  lower 
house  of  the  national  legislature.  He  is  not  chosen  for  a 
definite  term  but  retains  office  so  long  as  he  can  retain  his 
majority  in  the  house.  The  result  is  a  very  close  union 
between  the  executive  and  legislative  departments  of  gov- 
ernment, so  that  the  prime  minister  and  his  cabinet  are 
really,  as  they  have  been  called,  a  third  house  of  the  legisla- 
ture. 

In  England  the  people  exercise  their  power  in  government 
through  their  elected  representatives  in  the  legislature  to  a 
greater  extent  than  in  the  United  States,  and  the  representa- 
tives assembled  in  the  house  of  commons  are  the  supreme 
authority  in  the  state.  The  upper  house,  the  house  of  lords, 
has  a  very  limited  power  and  must  give  way  in  the  end  on  any 
measure  which  the  house  of  commons  is  determined  to  carry. 
The  same  thing  is  even  more  completely  true  of  the  king,  who 
is  supposed  even  to  have  no  opinion  on  any  political  question 
except  that  of  the  cabinet  in  office,  and  who  never  expresses 
an  opinion  except  through  his  ministers.  The  house  of  com- 
mons also,  as  the  supreme  authority  in  the  state,  is  the  con- 
stitution making  body,  and  every  other  authority  is  bound  by 
an  act  of  parliament,  even  though  it  changes  fundamentally 
the  powers  or  functions  of  any  part  of  the  state  machinery. 
There  is  no  written  constitution,  adopted  by  direct  act  of 
the  people,  and  no  document  of  any  kind  which  lays  out 
the  different  departments  of  government  and  defines  their 
functions,  powers,  and  limitations.  The  constitution  is  an 
unwritten  body  of  custom  and  precedent,  the  result  of  un- 
premeditated growth ;  but  certain  statutes,  constitutional  in 
character,  do  exist  which  for  the  most  part  give  sanction  to 


INTRODUCTION  3 

limitations  which  experience  at  some  time  proved  it  necessary 
to  place  upon  the  exercise  of  one  power  or  another. 

Though  the  house  of  commons  appears  from  these  facts 
to  possess  a  power  in  the  government  of  England  far  greater 
than  is  lodged  in  any  one  part  of  the  American  government^ 
it  is  in  practice  more  directly  and  immediately  under  popular 
control  than  any  American  legislature.  The  dependence  of 
the  cabinet  on  a  majority  in  the  house  of  commons  makes 
the  issue  in  an  election  general  policy  or  specific  measures 
rather  than  men  and  gives  to  it  the  character  of  a  referendum. 
The  fact  also  that  the  new  parliament  goes  into  session  at 
once  after  an  election  makes  the  popular  decision  immediately 
effective.  The  progress  of  democracy  during  the  last  fifty 
years  has  also  evolved  very  efficient  methods  of  bringing 
public  opinion  to  bear  directly  upon  the  members  of  the 
house,  so  efficient  indeed  that  one  may  begin  to  question  if 
the  representative  character  of  the  member  is  not  in  danger 
of  disappearing  in  the  character  of  a  mere  delegate. 

We  may  have  before  us  then  in  very  simple  terms  the 
problem  of  English  constitutional  history.  It  is  to  show 
how  the  absolute  government  of  the  eleventh  century,  which 
centred  all  power  in  the  king  and  provided  no  way  in  which 
any  will  but  his  could  be  expressed,  was  gradually  trans- 
formed into  the  democracy  of  today,  in  which  the  king 
has  no  will  and  the  expressed  opinion  of  the  people  controls 
all.  It  has  to  show  also  how  more  than  two  hundred  years 
ago  the  way  had  been  prepared  for  republican  government 
of  the  people  and  by  the  people,  and  how  the  line  of  growth 
was  then  divided  into  two  branches  each  leading  to  a  result 
fundamentally  similar  to  the  other  but  differing  from  it  in 
many  superficial  aspects.  It  is  the  story  of  a  movement 
slowly  beginning,  slowly  gathering  momentum,  until  at  last 
it  becomes  irresistible.  It  involves  also  an  account  of  the 
institutions  in  which,  in  successive  stages  of  the  progress,  the 
government  of  the  state  was  embodied. 


CHAPTER  I 

THE  ANGLO-SAXON  AGE 

The  English  constitution  like  the  English  nation  and  the 
English  language  was  derived  from  a  variety  of  sources. 
The  territory  which  came  in  time  to  form  the  kingdom  of 
England  was  occupied  during  the  first  thousand  years  of  its 
known  history  by  a  succession  of  peoples  who  ruled  it,  or 
large  portions  of  it,  in  turn  and  who  might  each  be  expected 
to  leave  behind  a  permanent  legacy  of  law  and  institutions 
to  later  times.  As  a  matter  of  fact  they  did  not  all  do 
so.  The  first  ruling  race,  the  Celtic,  made  probably  a  large 
contribution  to  the  blood  of  the  future  English  nation,  but 
to  political  and  legal  institutions  practically  nothing. 

The  same  thing  is  true  of  the  Romans,  so  far  as  their 
occupation  of  the  province  of  Britain  is  concerned.  Eng- 
lish constitutional  history  has  been  at  one  time  or  another 
strongly  affected  by  Roman  influences,  but  these  influences 
were  not  felt  at  any  one  moment  nor  from  a  single  source, 
and  none  of  them  began  to  act  until  centuries  after  the 
Roman  occupation  had  ceased.  From  that  occupation  it- 
self no  influence  is  traceable  upon  institutions  that  are 
primarily  political  or  legal.  The  highest  authority  upon 
the  history  of  early  English  law  has  said:  "The  written 
dooms  of  our  kings  have  been  searched  over  and  over  again 
by  men  skilled  in  detecting  the  least  shred  of  Roman  law 
under  the  most  barbaric  disguise,  and  they  have  found  noth- 
ing worthy  of  mention.  That  these  dooms  are  the  purest 
specimens  of  pure  Germanic  law  has  been  the  verdict  of  one 
scholar  after  another." 

From  the  Romans  their  Teutonic  successors  in  England 

did  learn,  either  as  a  result  of  the  occupation  or  from  the 

5 


6  THE  ANGLO-SAXON  AGE 

church,  the  use  of  the  formal  written  document,  the  charter, 
whether  intended  to  record  a  judicial  decision  or  a  convey- 
ance, and  the  will,  but  they  learned  no  substantive  law  with 
the  document.  They  adopted  the  written  will  but  they  did 
not  know  the  Roman  law  of  wills.  In  later  ages  much  more 
was  learned  and  our  present  indebtedness  to  Roman  law  is 
great.  At  the  Norman  Conquest  a  Roman  institutional  influ- 
ence was  introduced  and  some  unrecognized  influence  of  law 
at  least.  Later  still,  when  the  scientific  study  of  law  began 
in  the  twelfth  century,  a  much  stronger  influence  made  it- 
self felt.  Writers  of  text  books  and  judges  on  the  bench, 
trained  by  the  new  study  in  more  scientific  conceptions,  were 
influenced,  often  perhaps  unconsciously,  in  their  formulation 
and  systematizing  of  native  law  by  the  training  they  had 
received,  but  direct  borrowing  also  began  more  extensively 
than  before  until  large  fields  of  our  law  were  deeply  affected 
by  Roman  ideas :  the  law  of  marriage  and  inheritance,  equity 
law,  and  admiralty  and  international  law  for  example. 
These  Roman  elements  in  our  present  law,  however,  like  the 
Latin  elements  in  our  language,  were  not  derived  from  the 
Roman  conquest  and  occupation  of  Britain  but  from  some 
later  influence. 

It  was  from  the  third  race  of  conquerors  and  colonizers 
of  England  that  later  law  and  institutions  took  their  rise. 
But  in  this  case  also  it  was  not  at  any  one  time  that  the  foun- 
dation was  completed.  Three  successive  waves  of  Teutonic 
conquerors  made  contributions  to  the  common  result.  The 
Angle  and  Saxon  conquest,  we  may  count  together  as  the 
first.  The  second  was  the  Scandinavian  or  Danish  occupa- 
tion of  the  north-east,  of  something  more  than  half  the  coun- 
try. Their  contribution  was  so  nearly  like  the  first  that, 
though  we  may  still  trace  its  effects  in  language,  it  may  be 
neglected  in  a  general  history  of  institutions.  The  Norman 
conquest  in  the  eleventh  century  was  the  third,  and  it  brought 
in  a  new  and  vigorous  Teutonic  influence  but  from  a  source 
widely  separate  from  the  others,  from  the  Franks  who  had 


CHANCES  BEFORE  THE  CONQUEST     7 

conquered  Gaul  and  established  a  Frankish  Roman  Empire. 
In  consequence  this  new  source,  though  it  was  primarily 
Teutonic,  was  Teutonic  strongly  modified  and  developed  by 
contact  with  Roman  political  civilization  through  five  cen- 
turies of  union  in  the  Frankish  kingdom.  The  modification 
of  the  original  Teutonic  was  so  great  by  the  date  of  the 
Norman  Conquest  that  the  differences  strike  us  as  more 
significant  that  the  resemblances,  except  in  a  few  particulars, 
and  the  processes  of  union  between  Saxon  and  Norman  into 
an  indistinguishable  whole  takes  nearly,  a  hundred  years 
really  to  begin  and  another  hundred  really  to  complete  itself. 

So  striking  do  the  differences  seem  to  us  that  universally 
we  regard  the  Norman  Conquest  of  1066  as  closing  one  great 
epoch  in  English  history  and  beginning  another,  though  stu- 
dents of  the  history  do  not  agree  in  their  interpretation  of  it 
and  emphasize  one  feature  or  another  of  the  change  accord- 
ing to  the  point  of  view  from  which  they  regard  it.  In  con- 
stitutional history,  in  the  history  of  the  general  government 
of  the  state  as  distinguished  from  the  local,  the  change  was 
decisive.  It  was  so  sweeping  that  it  is  no  exaggeration  to 
say  that  the  origin  of  some  important  features  of  the  con- 
stitution of  the  state  must  be  sought  in  Frankish,  not  in 
Saxon  institutions.  In  the  field  of  local  government  the 
change  was  not  so  great  and  in  some  particulars  scarcely 
noticeable.  While  king  and  barons  constituted  the  national 
government  in  a  new  way  and  a  new  national  law  governed 
important  relations,  the  territorial  divisions  and  sub-divi- 
sions of  the  state  and  the  law  administered  in  the  local  courts 
continued  for  a  long  time  without  apparent  change. 

Much  study  has  been  given  by  scholars  to  early  Saxon 
institutions  and  to  the  history  of  their  development  during 
the  period  of  Saxon  rule  in  England,  but  the  material  from 
which  we  must  obtain  our  knowledge  is  so  scanty  and  so 
difficult  to  interpret  with  certainty  that  about  many  essential 
matters  we  have  to  confess  our  ignorance.  A  scholar  reaches 
a  conclusion  which  seems  sound  to  himself,  but  the  amount 


8  THE  ANGLO-SAXON  AGE 

of  evidence  which  he  can  bring  to  its  support,  or  the  method 
which  he  has  followed,  are  not  convincing  to  others.  One 
kind  of  material,  codes  of  law,  we  have  in  unusual  abun- 
dance, but  the  object  of  the  makers  of  the  codes  does  not 
seem  to  have  been  so  much  to  write  down  the  whole  body 
of  the  law  as  to-  make  a  record  of  changes  and  memoranda 
of  points  that  might  easily  be  forgotten.1  We  are  conse- 
quently in  the  study,  of  this  material  also  largely  shut  up 
to  conjecture.  Like  all  primitive  people,  the  Saxon  paid 
no  attention  to  the  needs  of  the  future  student  and  recorded, 
either  in  documents  or  in  books,  only  what  he  had  some  need 
of  himself  or  some  special  interest  in. 

As  we  draw  nearer  to  the  time  of  the  Norman  Conquest, 
the  amount  and  fulness  of  the  material  increases,  and  of 
the  institutions  of  the  Anglo-Saxon  kingdom  on  the  eve  of 
the  Conquest  we  have  a  much  more  trustworthy  knowledge. 
For  the  purposes  of  this  stu;dy,  it  seems  likely  to  be  more 
satisfactory  >if  we  attempt  a  description  of  the  constitution 
as  it  then  existed,  adding  so  far  as  possible  some  account 
of  how  its  various  features  came  to  be  what  they  were,  than 
to  attempt  any  detailed  picture  of  a  development  in  which 
so  much  must  be  uncertain. 

In  entering  upon  a  study  of  Anglo-Saxon  institutions, 
the  warning  which  is  given  to  every  beginning  student  of 
early  civilization  must  be  repeated:  not  to  attribute  to  the 
minds  of  that  time  ideas  which  are  the  results  of  historical 
growth  and  experience  since  their  day.  The  temptation  is 
almost  irresistible  to  assume  that  they  understood  by  certain 
terms  the  same  things  that  we  do,  and  to  apply  the  technical 
terms  by  which  we  characterize  practices  and  customs  to 
similar  practices  and  customs  'among  them.  In  the  study 
of  the  early  history  of  our  own  government,  the  constantly 
besetting  temptation  is  the  word  "  constitutional."  If  we 
could  use  it  only  in  what  is  its  primary  meaning,  the  way  of 
doing  things,  and  in  no  other,  we  should  be  perfectly  justified 
i  Extracts,  Stubbs,  S.  C,  6fi-88. 


DEFINITION  OF  TERMS  9 

in  using  it,  for  there  were  certainly  recognized  ways  of 
doing  things  in  government,  though  perhaps  less  stereotyped 
than  ours.  But  it  is  almost  impossible  for  us  to  use  the 
word  in  that  sense  alone.  It  means  to  us  a  consciously  recog- 
nized fixed  procedure,  which  is  known  to  all  men,  departure 
from  which  is  either  by  law  or  by  convention  made  impossible, 
instantly  detected  and  denounced  by  watchful  guardians  of 
the  constitution.  In  the  Anglo-Saxon  state  we  find  such 
fixity  of  forms,  such  conscious  exercise  of  rights  and  enforce- 
ment of  obligations,  in  a  field  where  we  are  not  tempted  to  use 
the  word  constitutional,  in  judicial  procedure,  but  not  in  the 
field  of  government.  In  reference  to  government  the  word 
must  be  used,  and  interpreted  when  used,  with  the  greatest 
caution,  or  we  shall  suppose  a  degree  of  regularity  about 
government  and  political  procedure,  and  of  conscious  think- 
ing about  them,  which  did  not  exist.  Men  did  things  but 
they  did  not  reason  about  their  doing,  nor  did  the  boundary 
lines  between  one  function  of  government  and  another,  nor 
the  distinction  between  one  way  of  doing  a  thing  and  an- 
other, seem  to  them  important,  and  we  shall  be  deceiving 
ourselves  if  we  fall  into  the  way  of  thinking  otherwise. 

On  the  eve  of  the  Conquest  England  was  a  single  king- 
dom. Its  union  had  been  brought  about,  however,  by  a  long 
and  slow  process  in  which  various  independent  colonies  and 
kingdoms  had  been  amalgamated  into  one,  and  this  process 
had  left  visible  traces  not  merely  in  the  geography  of  the 
state  but  also  in  its  government.  The  shires  into  which  the 
kingdom  was  divided  represented  in  many  cases  earlier  colo- 
nies or  tribal  kingdoms,  as  in  the  case  of  Surrey,  Sussex, 
Essex,  Kent,  Norfolk  and  Suffolk  for  example.  Details  of 
local  law  differed  quite  distinctly  in  different  parts  of  the 
kingdom.  West  and  North  still  retained  something  of  their 
ancient  independence  which  had  to  be  recognized  in  the  ar- 
rangements made  for  the  local  representation  of  the  central 
government. 

The  Teutonic  tribes  which  began  to   take  possession   of 


10  THE  ANGLO-SAXON  AGE 

Britain  soon  after  the  withdrawal  of  the  Roman  troops  in 
the  fifth  century  were  from  the  lowland  districts  of  northern 
Germany  and  the  Danish  peninsula  along  the  shores  of  the 
North  Sea.  In  their  original  homes  they  seem  to  have  been 
in  their  political  development  among  the  more  backward  of 
the  German  tribes.  They  had  no  tribal  unity,  no  kings  or 
common  government,  but  appear  to  have  been  divided  into 
small  related  groups  more  or  less  closely  allied  with  one 
another.  Indeed  when  they  were  forced  to  submit  to  Charle- 
magne at  the  beginning  of  the  ninth  century,  they  were  still 
in  this  political  condition  and  had  not  yet  developed  a  king 
nor  any  settled  government  of  the  tribe  as  a  whole.  In 
one  respect  this  political  condition  was  reflected  in  the 
organized  settlements  established  in  Britain,  whatever  may 
have  been  the  way  in  which  the  Saxons  conducted  their  con- 
quest. No  common  government  was  created.  Apparently 
each  war  band,  or  perhaps  each  of  the  older  tribal  groups, 
set  up  an  independent  colony  of  its  own,  and  no  effort  was 
made  to  unite  them  into  one  state,  nor  does  any  idea  seem 
to  have  been  entertained  that  such  a  result  would  be  de- 
sirable. Almost  from  the  start,  however,  the  process  of 
union  must  actually  have  begun,  really  a  process  of  con- 
quest among  themselves,  the  swallowing  up  of  the  original 
settlements  one  by  another,  which  went  on  for  many  genera- 
tions, until  first  each  of  the  seven  historic  kingdoms,  known 
as  the  Heptarchy,  was  formed  and  finally  the  kingdom  of 
England  itself  under  the  West  Saxon  Kings. 

One  result  of  the  conquest  we  «m-ay  imagine  was  immediate. 
The  war  chief,  who  may  have  been  'originally  chosen,  as 
Tacitus  intimates  was  the  case,  for  his  nobility  of  birth  or 
for  his  proved  abilities,  became  a  king.  In  the  conditions 
of  the  settlement  upon  conquered  territory,  bordering  upon 
hostile  tribes,  in  almost  constant  war,  this  office  must  have 
become  permanent.  At  first  in  all  probability  it  was  little 
if  anything  more  than  a  permanent  war  leadership.  By  de- 
grees  it  would  assume  the  character  and  functions  of  the 


DEVELOPMENT  OF  OFFICE  OF  KING  11 

kingship,  of  the  supervision  of  the  tribe  in  its  more  general 
concerns,  in  a  more  orderly  and  settled  state.  Whether  this 
was  truly  the  origin  of  definite  government  and  constitu- 
tional development  in  these  Saxon  colonies  or  not,  at  any 
rate  soon  after  the  beginning  of  the  conquest  real  political 
organization  is  to  be  found  in  the  emerging  states,  and  the 
institutional  details,  of  which  we  begin  to  get  traces,  link 
themselves  naturally  with  those  described  by  Tacitus  as  pos- 
sessed by  the  Germans  with  whom  Rome  had  come  in  contact 
in  his  time. 

While  the  origin  of  the  Saxon  kingship  sketched  in  the 
last  paragraph  is  conjectural,  there  is  no  doubt  but  that 
the  continued  warfare  which  existed  through  almost  the 
whole  of  Anglo-Saxon  history,  in  the  slow  process  of  con- 
quest which  formed  a  single  kingdom  and  in  the  long  and 
fierce  struggle  with  the  new  Teutonic  colonization  of  the 
Danes,  led  to  a  steady  development  in  the  office  of  king  after 
it  had  once  come  into  existence.  The  state  also  grew  more 
definite  as  it  increased  in  size,  its  problems  multiplied,  its 
machinery  was  improved  and  more  carefully  operated,  and 
the  body  of  law  became  larger  and  more  complex.  The 
kingship,  which  seems  to  have  been  the  most  natural  form 
of  earTy  political  organization  in  times  of  recordeH  history, 
considerecTas  the  center  of  the  machinery  of  government  and 
as  the  directing  head  responsible  for  the  going  on  of  all  proc- 
esses, inevitably  grew  in  power  as  the  state  grew  in  definite- 
ness. 

It  was  the  kingship  which  became  strong.  Whether  any 
given  king  was  powerful  or  not  depended  upon  himself,  upon 
his  abilities  and  strength  of  will.  In  the  last  century  before 
the  conquest,  there  is  an  alternation  of  weak  and  strong 
kings  with  no  change  in  the  possibilities  of  power  but  only 
in  the  character  of  the  king.  But  the  Anglo-Saxon  king- 
ship never  became  absolute.  It  never  .obtained  the  degree 
of  power  of  the  Carolingian  Frankish  monarchy  nor  ruled 
over  so  centralized  a  state  as  that  in  its  best  days.     It  never 


12  THE  ANGLO-SAXON  AGE 

felt,  or  felt  only  slightly,  the  influence  of  Rome  as  a  model, 
nor  the  temptation  of  the  Roman  idea  of  Empire,  nor  the 
necessity  of  borrowing  governmental  machinery  to  solve  the 
problems  of  a  small  state  suddenly  become  a  great  one.  In 
consequence  the  Saxon  monarchy  developed  in  power  more 
slowly  than  the  Frankish.  It  followed  very  much  the  same 
road.  It  is  possible  to  point  out  many  details  in  which 
their  history  seems  alike.  But  when  the  end  of  the  Saxon 
monarchy  came  in  the  eleventh  century,  it  was  still  some 
generations  of  development  behind  the  point  which  had  been 
reached  by  the  Frankish  in  the  ninth.  Some  of  the  ways 
in  which  the  king  was  limited  will  be  pointed  out  later,  but 
here  it  may  be  said  in  general  that  he  was  limited  by  custom. 
As  has  been  said :  "  His  power  was  subordinate  to  the  cus- 
toms  of  his  people;  he  could  touch  no  freeman's  heritage  or 
life  without  a  process  at  law,  which  gave  the  freeman  the 
right  of  defending  his  cause  before  his  fellow-freemen ;  he 
could  make  no  law  without  his  people's  deliberate  consent ; 
he  habitually  acted  by  the  advice  of  his  counsellors  and  wise- 
men,  who  formed  his  privy  council  as  it  were."  This  is 
limitation  by  an  interpretation  of  his  relation  to  the  other 
elements  of  the  community  which  had  grown  customary,  by 
habit  and  common  understanding,  not  by  law.  A  strong 
king  might  push  perilously  near  to  an  overriding  of  such 
limitations,  a  weak  king  might  have  scarcely  any  initiative 
at  all. 

In  a  sense  the  monarchy  was  elective,  but  not  in  quite 
the  sense  which  the  phrase  "  an  elective  monarchy  "  has  for 
modern  ears.  Many  of  the  Teutonic  tribes  that  formed 
states  after  the  fall  of  the  Western  Roman  Empire  give  evi- 
dence in  their  later  practices  that  the  primitive  German 
king  had  been  elected.  Traces  of  the  fact  lingered  as  long 
in  the  French  state  as  in  the  English,  and  are  more  decided 
still  in  the  kingdom  of  Germany.  But  in  no  one  of  these 
states  did  there  exist  what  the  modern  constitutional  lawyer 


"AN  ELECTIVE  MONARCHY"  13 

would  term  an  elective  monarchy,  as  he  would  use  the  term 
of  the  eighteenth  century  kingdom  of  Poland.  In  the  Saxon 
kingdom  of  England  the  crown  was  hereditary  in  a  particular 
family,  and  only  in  the  most  extreme  case  was  there  any 
departure  from  this  line,  once  as  the  result  of  conquest  jyjd 
once  in  the  face  of  a  threatened  conquest.  Some  choice  was 
not  infrequently  exercised  within  the  limits  of  this  family 
in  departure  from  the  line  of  strict  succession.  Apparently 
when  it  occurred,  it  was  not  the  deliberate  exercise  of  a 
recognized  right  always  consciously  felt  to  exist,  but  the 
determination  of  a  more  or  less  vague  body  of  leading  men, 
whose  decision  could  not  be  resisted,  or  who  had  influence 
enough  to  control  the  community,  to  acknowledge  one  mem- 
ber of  the  family  as  king  rather  than  another,  not  always 
on  grounds  of  fitness.  What  seems  most  nearly  like  de- 
liberative action  occurred  when  a  wide  departure  had  to  be 
made  from  the  strict  line  of  succession,  or  when  a  new 
dynasty  had  to  be  chosen.  But  these  are  contingencies  which 
may  arise  in  the  history  of  any  state  under  any  form  of 
constitution.  What  is  significant  in  such  cases  is  not  the 
act  of  choice,  but  the  ground  of  right  upon  which  the  actors 
in  the  given  case  suppose  themselves  to  be  acting.  The 
same  qualifications  apply  to  the  cases  of  deposition  of  the 
king  which  occasionally  occur  in  Anglo-Saxon  history,  with 
the  proviso  that  deposition  is  a  more  extreme  act  and  there- 
fore likely  to  be  more  deliberate. 

The  Anglo-Saxon  church  early  showed  an  interest  in  the 
monarchy  and,  in  so  far  as  it  could  be,  it  was  an  ally  in  its 
advancement.  Roman  Christianity  was  introduced  among 
the  Teutonic  conquerors  but  little  more  than  a  century  after 
their  real  settlement  began.  Its  beginning  and  spread  in 
England  owed  much  to  the  patronage  of  the  kings,  and  on 
its  side  the  church,  as  in  other  of  the  forming  states  of 
Europe,  favored  to  the  extent  of  its  ability  union  and  a  strong 
central  government.     In  its  own  organization  it  tended  to 


14  THE  ANGLO-SAXON  AGE 

regard  all  the  Anglo-Saxon  settlements  as  a  single  people, 
whatever  political  separation  might  exist.2  The  head  of  the 
church  took  the  leading  part  in  the  coronation  of  the  king, 
anointing  him  with  holy  oil  after  the  manner  of  the  Old  Testa- 
ment and  receiving  from  him  his  coronation  oath.  At  the 
end  of  the  tenth  century  this  oath  is  recorded  as  follows : 
In  the  name  of  the  Holy  Trinity,  three  things  do  I  promise 
to  this  Christian  people  my  subjects:  first,  that  God's  Church 
and  all  the  Christian  people  of  my  realm  hold  true  peace ; 
secondly,  that  I  forbid  all  rapine  and  injustice  to  men  of 
all  conditions;  thirdly,  that  I  promise  and  enjoin  justice 
and  mercy  in  all  judgments,  that  the  just  and  merciful  God 
of  his  everlasting  mercy  may  forgive  us  all.  The  corona- 
tion oath  sworn  by  the  English  kings  continued  this  form 
almost  unchanged  for  two  hundred  years  after  the  Conquest.3 
Associated  with  the  king  in  the  general  government  was 
an  assembly  of  the  chief  men  of  the  state,  lay  and  clerical. 
The  Anglo-Saxons  called  this  assembly  Witenagemot,  the 
court  of  the  wise  men,  and  the  name  undoubtedly  indicates 
the  principle  "'of  its 'composition.  Its  membership  was  not 
^official  nordesignated  in  any  way  that  we  should  call  con- 
stitutional  in  the~~moHern  sense.  No  officer  nor  individual 
possessed  a  right  to  attend.  It  was  not  a  representative 
assembly,  nor  were  its  members  elected.  As  nearly  as  we  can 
tell  the  king  determined  what  persons  should  attend  any  given 
meeting,  but  it  seems  probable  that  his  choice  was  not  always 
free.  That  is,  there  would  always  be  holders  of  certain  high 
offices,  archbishops  and  earls,  who  could  not  well  be  omitted, 
and  certain  other  persons,  so  intimately  associated  with  the 
government  of  the  moment,  officers  of  the  king's  household 
and  others,  that  they  must  be  present.  Besides  these  there 
would  always  be,  it  is  likely,  others,  both  lay  and  clerical,  so 
prominent  in  the-country  that  they  could  not  be  passed  over, 
whose   aid  was  needed  or  displeasure  feared.     Apart  from 

2  Gregory  I's  letter  on  English  dioceses,  a.  n.  601,  G.  and  H.,  9. 
aStubbs,  S.  C,  69,  94;  Cheyney,  Readings,  105. 


THE  WITENAGEMOT  15 

these  the  king's  choice  seems  to  have  determined  who  should 
come,  guided  perhaps  by  the  business  to  be  done  or  the  con- 
venience of  the  place  of  meeting.  That  the  witenagemot  con- 
sciously represented  the  nation  in  any  action  which  it  took 
is  highly  improbable.  It  spoke  for  itself,  for  the  class  which 
its  members  constituted,  and  there  was  no  one  else  in  the 
nation  whose  opinion  was  of  any  consequence.  In  this  sense 
its  voice  was  the  voice  of  the  nation. 

In  capacity  and  function  the  witenagemot  was  like  many 
primitive  institutions  undifferentiated,  that  is,  it  was  accus- 
tomed to  perform,  without  making  an  apparent  distinction 
between  them  in  its  action,  a  variety  of  functions,  which  we 
believe  should  be  separated  and  assigned  to  different  insti- 
tutions. It  was  at  once  the  highest  legislative  and  the  high- 
est judicial  bod}r  in  the  kingdom,  but  in  saying  this  we  must 
be  careful  not  to  suppose  that  the  Anglo-Saxons  attached 
such  definite  ideas  to  these  terms  as  we  do.  The  same  body 
could  be  at  once  legislature  and  court  because  the  ideas  ex- 
pressed by  these  words  were  somewhat  indefinite.  The  idea  of 
judicial  action  was  more  clearly  defined  than  of  legislative. 
Practically  all  law  was  custom^  Legislation  consisted  less 
in  making  law  that  was  entirely  new,  though  no  doubt  that 
was  sometimes  done,  than  in  modifying  or  interpreting  exist- 
ing law.  If  this  was  legislation,  it  was  quite  natural  that 
the  highest  court  in  the  land  should  be  also  the  national 
legislature,  for  a  judicial  decision  was  the  interpretation 
and  application  of  the  same  customary  law.  The  witenage- 
mot was  also  the  king's  council  and  gave  him  advice  on  ques- 
tions of  policy  and  of  action  in  particular  cases,  like  a  mod- 
ern cabinet  council,  though  without  independent  power  of 
decision  unless  there  was  no  king  or  a  powerless  king.  But 
the  approval  and  consent  of  the  witenagemot,  as  that  of  the 
ruling  class  in  the  state,  gave  sanction  to  any  act  of  the 
king's  whether  it  was  the  proclamation  of  a  new  code  of  laws, 
the  making  of  a  treaty  with  another  king,  or  a  royal  grant 
of  lands.     Ecclesiastical  matters  were  as  much  subject  to 


16  THE  ANGLO-SAXON  AGE 

its  approval  as  those  concerning  the  state,  and  the  church 
did  not  possess  in  the  fullest  sense  an  independent  right  of 
legislation,  or  of  judicial  action,  in  Saxon  times. 

In  his  account  of  the  tribal  assembly  of  the  primitive 
Germans,  Tacitus  speaks  of  the  meeting  of  two  bodies,4  one 
a  smaller  council  of  chiefs  which  decided  by  itself  matters 
of  minor  importance  and  prepared  for  submission  to  the 
larger  assembly  of  all  the  freemen  those  of  greater  impor- 
tance. Apparently  the  chiefs  presented  these  matters  to 
the  full  assembly  and  explained  the  policy  which  they  thought 
ought  to  be  followed.  The  account  looks  as  if  they  pre- 
sented -a  decision  they  had  themselves  already  reached,  and 
as  if  the  larger  assembly  had  only  a  voice  to  accept  or 
reject.  At  any  rate  in  the  later  Teutonic  states  this,  or 
even  less  than  this,  was  the  only  function  remaining  to  such 
traces  of  a  national  assembly  as  survived  in  them.  The 
assembly  applauded  the  decision  of  the  council  of  magnates, 
never  rejected  it.  Faint  traces  of  this  assembly  remain  in 
the  Saxon,  as  in  the  Frankish,  state,  when  something  called 
masses  of  the  people  together  at  a  muster  of  the  army  or  at 
a  coronation,  but  there  is  no  evidence  that  it  possessed  in 
either  state  any  real  influence  on  legislation,  or  any  in- 
dependent power  of  decision. 

In  relation  to  the  ordinary  business  of  the  central  govern- 
ment, there  developed  in  the  Frankish  state  a  small  council- 
court,  alongside  the  greater  assembly  of  all  the  magnates  or, 
more  accurately,  one  performing  the  functions  of  the  larger 
body  during  the  intervals  between  its  infrequent  sessions. 
It  was  composed  primarily  of  the  officers  of  the  king's  house- 
hold with  the  count  of  the  palace  at  their  head  and  of  such 
magnates  as  happened  to  be  with  the  king  or  as  had  occasion 
to  attend.  In  Carolingian  times  a  very  large  share  of  the 
judicial  business  which  fell  to  the  central  king's  court  was 
done  by  this  body.  Of  the  existence  of  such  an  institution 
in  England  before  the  Norman  Conquest,  we  get  only  faint 
*  Tacitus,  Oermania,  c.  11;  Stubbs,  S.  C,  61. 


THE  SHERIFF  17 

traces,  not  distinct  enough  to  warrant  description.  Special 
local  king's  courts  formed  on  the  basis  of  the  ordinary  local 
courts,  and  created  and  commissioned  by  royal  writs,  seem 
also  to  have  been  wanting,  though  there  is  evidence  to  show 
that  there  was  no  clear  boundary  of  jurisdiction  between 
the  witenagemot  and  the  shire  court,  that  in  some  instances 
at  least  cases  were  tried  before  shire  courts  which  do  not 
seem  distinguishable  in  character  from  those  tried  at  an- 
other time  before  the  witenagemot.5 

On  the  eve  of  the  Conquest,  there  existed  in  the  office  of 
sheriff  a  bond  of  connection  between  the  central  and  the 
local  governments  which  was  destined  later  to  be  of  the  great- 
est importance.  In  exactly  what  way  the  office  of  sheriff 
originated,  it  is  now  impossible  to  say  with  certainty.  It 
seems  most  probable  that  its  earliest  form  was  a  stewardship 
of  the  king's  financial  interests,  the  care  of  his  domain  lands 
and  his  local  revenues,  in  the  territorial  divisions,  or  per- 
haps only  in  the  subdivisions  of  the  state.  When  we  come 
to  know  more  of  it  in  the  last  century  of  Saxon  history,  it 
is  an  office  which  had  plainly  developed  out  of  something 
filling  a  less  important  place  in  the  government,  and  it  was 
as  plainly  still  increasing  in  importance.  A  part  of  the  in- 
crease in  power  of  the  sheriff  seems  to  have  been  due  to  the 
growth  in  power  of  the  king  and  in  the  definiteness  of  gov- 
ernment under  him,  and  a  part  to  changes  in  the  functions  of 
another  Anglo-Saxon  officer,  the  alderman,  whose  history  we 
shall  consider  later  and  whose  earlier  functions  in  part  fall 
to  the  sheriff.  As_the  state  grew  in  size,  population  and 
business,  the  interests  which  the  king  had  to  look  after  in- 
creased in  number  and  complexity.  The  representative_of 
the  king's  interests  in  the  smaller  state  naturally  developed 
his  duties  into  the  guardianship  of  similar  things  in  the 
larger  state.  It  is  probably  in  connection  with  the  expan- 
sion of  the  state's  territory  if  it  had  not  been  true  earlier 

sH.  Adams,  Essays  in  Anglo-Saxon  Law,  309-383,  gives,  with  transla- 
tion, cases  before  both  courts. 


18  THE  ANGLO-SAXON  AGE 

that  the  sheriff  became  the  king's  reeve  in  the  shire,  shire- 
reeve,  that  is  in  the  largest  division  of  the  state. 

If  this  history  of  the  sheriff's  office  is  correct,  it  indicates 
the  character  of  his  duties  on  the  eve  of  the  Norman  Con- 
quest. His  care  of  the  king's  revenue  in  his  district  was 
undoubtedly,  as  it  remained  for  some  time  afterwards,  his 
most  important  responsibility.  To  see  that  the  king's  lands 
were  well  let  and  properly  stocked  and  cultivated,  and  that 
their  returns  came  in  at  the  proper  times,  was  probably  the 
largest  part  of  his-  duty.  But  he  had  also  to  collect  and  pay 
over  certain  judicial  fines  and  fees  which  belonged  to  the  king 
from  the  local  administration  of  justice.  These  two  sources 
made  up,  sometime  after  the  Conquest,  the  larger  portion  of 
the  county  ferm  or  annual  rent  which  the  sheriff  paid  for 
his  county.  There  is  some  evidence  to  indicate  that  in  Saxon 
times  a  beginning  had  been  made  towards  fixing  a  lump  sum 
which  the  sheriff  should  pay,  as  a  kind  of  speculation,  for 
these  two  sources  of  revenue,  but  we  are  not  able  to  say  that 
the  process  had  gone  very  far.  It  is  a  question  whether  in 
the  most  important  of  his  other  duties  the  sheriff  did  not 
represent  the  alderman  rather  than  the  king,  but  even  if  so 
the  fact  remains  that  the  change  means  the  slipping  of  local 
responsibilities  and  powers  into  the  hands  of  an  officer  more 
under  royal  control  than  the  alderman  had  been.  In  this 
way  most  likely  the  sheriff  came  to  be  the  presiding  officer 
with  the  bishop  in  the  shire  court,  not  as  judge  but  as  chair- 
man or  moderator,  to  have  some  responsibility  even  in  the 
lower  courts  for  the  arrest  of  criminals  and  the  punishment 
of  crime,  and  to  proclaim  and  enforce  laws  and  royal  com- 
mands throughout  his  district.  In  this  way  also  he  assumed 
some  of  the  military  duties  of  the  alderman  in  calling  out 
and  commanding  the  local  levies. 

Although  the  office  of  sheriff  was  still  undeveloped  and  in 
process  of  making,  the  position  which  it  occupied  in  the 
state  was  plainly  to  be  seen  before  the  Norman  monarchy 
took  hold  of  it.     A  royal  officer,  appointed  by  the  king  and 


SHERIFF  AND  KING  19 

under  his  control,  not  yet  seriously  affected  by  the  universal 
medieval  temptation  to  turn  a  local  office  into  a  local  prin- 
cipality, and  generic  in  character,  concerned  at  once  with 
financial,  administrative,  judicial  and  military  functions,  the 
sheriff's  office  furnished  in  days  of  simple  and  undifferentiated 
government  a  most  effective  means  of  centralization.  He 
was  a  leading  man  of  the  locality,  thoroughly  familiar  with 
local  persons  and  affairs,  concerned  officially  with  all  the 
chief  activities  of  the  day  and  entrusted  with  the  care  of 
all  the  interests  of  the  central  government  from  which  he 
took  his  orders.  He  was  a  close  connecting  link  binding 
the  king  with  every  locality  in  the  kingdom.  In  this  respect 
the  office  of  sheriff  was  the  most  important  contribution  made 
by  the  Saxon  state  to  the  later  Norman  central  govern- 
ment. 

Not  much  more  than  these  things  can  be  said  of  the 
Saxon  central  government.  There  was  no  national  taxation 
in  the  modern  sense.  Early  in  the  eleventh  century  a  gen- 
eral levy  of  money  had  been  made  to  buy  off  the  Danes, 
and  this  had  been  collected  at  later  intervals  and  called  the 
Danegeld.  If  it  presented  the  possibility  of  developing  into 
a  modern  national  tax,  no  appreciable  progress  had  been 
made  in  that  direction  by  1066,  and  the  state  was  supported, 
as  the  local  magnate  supported  his  household,  by  the  proceeds 
of  domain  lands  and  of  judicial  rights.  There  was  no  system 
of  national  courts,  rising  in  graded  ranks  to  a  supreme  court 
having  the  right  of  correcting  the  errors  of  lower  courts.  w 
The  national  court,  the  witejuagemot,  might  see  to  it  that  a 
man's  case  should  get  a  trial,  if  the  local  courts  refused  to 
hear  him,  but  there  was  no  appeal  from  one  court  to  another 
in  our  sense  of  the  word,  and  no  way  of  reopening  a  case 
once  decided.  Courts  of  a  regularly  graded  series  were 
not  characteristic  of  the  Saxon  system  of  things,  but  courts 
of  concurrent  and  overlapping  jurisdictions  which  are 
puzzling  to  us.  Nearly  the  same  peculiarity  characterized 
the  body  of  the  law  itself.     There  was  as  yet  no  really  na- 


20  THE  ANGLO-SAXON  AGE 

tional  law,  though  we  can  see  it  beginning  to  form.  Rather 
the  tribal  law  of  the  three  great  Teutonic  peoples  which 
had  made  the  settlement  of  England  still  divided  the  country 
between  them,  as  they  had  once  divided  the  political  power: 
the  Saxon  in  the  south,  the  Mercian  in  the  central  west, 
and  the  Danish  in  the  northeast.  Over, these- local  .customs 
the  legislation  of  the  kings  made  slow  progress  towards  a 
national  law. ~~ 

It  is  in  the  field  of  local  government  that  the  most  ex- 
tensive and  by  far  the  most  lasting  contribution  was  made 
by  the  Anglo-Saxons  to  the  future  constitution  of  their  race. 
All  Anglo-Saxon  local  government  was  based  on  a  territorial 
division  and  sub-division  of  the  kingdom  which  is  particular!}' 
interesting  to  us  because  it  has  continued  with  only  slight 
modification  in  England  to  the  present  time  and  has  been 
reproduced  with  even  more  exactness  in  some  of  the  American 
states.  In  a  word  and  taking  no  account  of  minor  excep- 
tions, the  division  was  this:  the  kingdom  was  divided  into 
shires,  also  called  after  the  Norman  Conquest  counties ;  the 
shires  were  divided  into  hundreds,  a  name  manifestly  derived 
from  some  early  numerical  use  and  replaced  in  some  parts 
of  the  country  by  other  names,  like  the  Danish  name  wapen- 
take in  the  northeast  and  north;  and  the  hundreds  were 
divided  into  towns.  The  early  history  of  all  these  "territorial 
divisions  is~obscure  and  need  not  be  here  considered.  Their 
character  and  their  place  in  government  at  the  middle  of  the 
eleventh  century  is  the  essential  matter. 

At  that  date  all  England  which  was  subject  to  the  king 
was  divided  into  shires,  but  the  shires  of  the  different  parts 
of  the  kingdom  look  to  us  as  if  they  had  no  common  history 
behind  them.  Those  of  the  north  are  larger  and  seem  less 
settled  in  character  as  if  they  had  been  more  recently  formed, 
indeed  they  were  not  all  given  their  present  form  until  after 
1066.  Those  of  Wessex  seem  the  most  normal  and  settled 
as  divisions  of  the  state  and  may  represent  the  tribal  settle- 
ments of  which  the  original   kingdom  was   formed.     Those 


FUNCTION  OF  THE  SHIRE  21 

of  the  southeast,  Kent,  Sussex,  Essex  and  others  seem  plainly 
to  stand  for  earlier  kingdoms  or  independent  colonies.  These 
local  distinctions,  however,  were  rapidly  disappearing  in  the 
last  century  of  Saxon  history  and  none  of  them  survived  in 
a  way  to  affect  the  unity  of  the  Norman  kingdom. 

The  chief  function  of  the  shire  in  local  government,  if  we 
limit  ourselves  to  the  Saxon  evidence  which  we  have  and 
remember  what  has  been  said  above  of  the  relation  of  the 
legislative  and  judicial,  was  judicial.  It  was  the  district  of 
the  most  important  court  below  the  witenagemot,  the  shire 
court,  the  court  for  the  most  important  cases  arising  locally.6 
As  such  the^^shire^court  was  an  assembly  court,  using  the 
term  not  with  reference  to  the  way  in  wMl'tr'the  court  was 
formed  but  to  the  way  in  which  it  operated.  We  have  no 
evidence  from  Saxon  times  to  tell  us  how  the  assembly  which 
formed  the  court  was  brought  together.  We  can  only  guess 
that  the  method  was  the  same,  or  was  at  least  tending  to  be 
the  same,  as  in  Norman  times,  and  it  is  then  that  an  account 
of  it  will  be  most  in  place  for  then  this  court  begins  to  be 
of  greater  significance  in  history.  We  know,  however,  that 
the  court  was  made  up  of  a  considerable  assembly  which  may 
have  descended  in  some  cases  from  an  earlier  folkmote.  Pres- 
ent in  it  as  its  most  conspicuous  members  were  the  bishop  of 
the  diocese,  the  alderman  or  earl,  and  the  sheriff.  As  there 
were  no  independent  church  courts  in  the  Saxon  kingdom, 
it  was  the  duty  of  the  local  courts  to  interpret  and  enforce 
ecclesiastical  law  as  well  as  secular,  and  this  fact  explains 
the  presence  in  the  shire  court  of  the  bishop  who  very  prob- 
ably assumed  a  leading  place,  perhaps  as  presiding  officer, 
when  such  cases  were  tried.  The  regular  president  of  the 
court  was  the  alderman,  if  he  was  present,  if  not  his  place 
was  taken  by  the  sheriff,  who  was  inheriting  in  the  last  Saxon 
age  many  of  the  alderman's  peculiar  functions.  It  is  not 
likely  that  there  would  be  in  any  session  a  three  headed,  or 
a  double  headed  presidency,  as  some  text-books  seem  to  imply. 
•Cheyney,  Readings,  77;  Penn.,  I.  2.  21. 


22  THE  ANGLO-SAXON  AGE 

In  the  case  of  the  alderman,  we  have  again  an  office  whose 
early  history  is  obscure  but  wTiich  as  an  office  did  not  survive 
the  Conquest.  It  is  certain  that  between  the  eighth  and 
the  eleventh  centuries  this  institution  underwent  great  trans- 
formation. As  nearly  as  we  can  make  out,  it  represents  in 
early  times  the  headship  of  a  local  unit  which  stands  over 
against  the  central  government,  in  contrast  with,  but  per- 
haps not  in  opposition  to  it.  Certainly  if  it  was  ever  in 
opposition,  that  feature  died  out  of  its  history  as  time  went 
on,  and  the  increasing  power  of  the  king  drew  the  office  more 
and  more  under  his  control.  In  historical  times  the  king 
appointed  the  alderman,  though  in  practice  he  often  recog- 
nized hereditary  claims  and  had  only  a  limited  power  of  re- 
moval. That  the  king  was  less  bound  in  either  of  these  ways 
in  the  case  of  the  sheriff,  indicates  a  different  origin  and 
history  for  that  office.  The  alderman  was  the  natural  head 
for  the  shire  community,  the  natural  president  of  its  as- 
sembly, the  natural  commander  of  its  military  levy.  Nor- 
mally he  seems  to  have  looked  after  all  those  interests  of  the 
locality  which  were  not  directly  associated  with  the  govern- 
ment of  the  king.  These  latter  interests  were  the  sheriff's 
normal  field.  As  official  head  of  the  local  judicial  system, 
the  alderman  received  in  some  parts  of  the  country  one 
third  of  the  proceeds  of  court  fines  and  fees,  called  the  third 
penny  of  the  county,  and  tins  payment,  together  with  an 
association  of  the  title  with  some  particular  county,  con- 
tinued for  generations  after  the  Conquest  to  show  that 
"  earl  "  had  once  been  the  name  of  an  officer.  In  the  last 
Saxon  century,,  however,  a  great  change  was  taking  place. 
The  alderman  was  ceasing  to  be  what  he  had  once  been  and 
coming  to  be  something  new.  The  change  in  character  was 
accompanied  with  a  change  of  name:  the  alderman  comes 
to  be  called  the  earl,  and  the  change  seems  in  some  way  to 
be  associated  with  the  occupation  of  England  by  the  Danes, 
from  whom  the  new  name  comes.  The  earl  of  Edward  the 
Confessor's  reign  was  less  the  representative  of  a  local  com- 


THE  SHIRE  COURT  23 

munity  than  the  ruler,  governor  or  viceroy,  of  a  shire,  or  two 
shires,  or  even  a  larger  group  of  shires.  His  functions  were 
vague ;  his  power  from  his  position  was  large.  The  change 
looks  like  the  beginning  of  the  shift  from  the  Saxon  alder- 
man to  the  Norman  earl  with  its  power  derived  not  from 
office  but  from  rank,  dignity  and  wealth.  As  this  change 
went  on,  older  functions  of  the  alderman  fell  to  the  sheriff, 
and  we  find  the  latter  not  merely  commanding  the  local  levies 
but  somewhat  more  regularly  presiding  in  the  shire  court. 

The  president  of  the  shire  court  was  not  a  judge.  He 
was  a  chairman  or  moderator  only.  The  judgment  was 
always  made  by  the  assembly  itself,  or  by  a  group  of  its 
members  which  we  should  call  a  committee,  to  whom  it  as- 
signed the  duty,  and  because  it  reached  its  conclusions  in 
this  way  I  have  called  it  an  assembly  court.  The  judgment 
of  the  assembly  alone  was  not,  however,  final.  In  all  the 
early  Teutonic  courts,  and  in  the  courts  derived  directly  from 
them,  the  president  had  the  power  of  absolute  veto  on  all 
its  acts,  and  the  decision  of  a  suit  at  law  was  not  legally 
valid  until  accepted  and  pronounced  by  him  to  be  the  judg- 
ment of  the  court.  Sometimes  the  pronunciation  of  such 
a  judgment  is  given  us  in  the  records  and  chronicle  accounts 
as  if  it  were  the  independent  judgment  of  the  president  of 
the  court,  declaring  his  own  opinion  rather  than  that  of  the 
court,  and  we  cannot  be  absolutely  sure  that  this  was  not 
sometimes  the  case,  but  such  detailed  accounts  and  descrip- 
tions of  judicial  action  as  we  have  render  it  highly  improb- 
able. How  the  assembly  reached  its  decision  we  do  not  know. 
In  some  way  it  got  at  the  majority  opinion,  and  such  glimpses 
as  we  get  later  of  the  action  of  similar  courts  imply  some 
free  discussion  and  an  opportunity  at  least  for  a  good  deal 
of  influence  of  the  president  on  the  decision  before  it  was 
made,  and  undoubtedly  the  leading  members  also  exercised 
a  decisive  influence.  Judgment  by  something  like  a  com- 
mittee seems  to  have  been  very  common,  but  never  became 
official.     From  the  judgment  once  made  no  appeal  was  pos- 


24  THE  ANGLO-SAXON  AGE 

sible,  though  those  who  had  made  it  might  be  sued  for  dam- 
ages, or  if  they  had  taken  an  oath  in  the  process,  the}'  might 
be  put  on  trial  for  perjury. 

The  hundred  court  was  almost  exactly  like  the  shire  court, 
except  that  it  was  the  court  of  a  subdivision  of  the  shire.7  It 
was  formed  apparently  by  the  same  method,  whatever  that 
was,  may  also  have  represented  an  earlier  folkmote,  was  pre- 
sided over  by  a  hundred  man  or  hundred  alderman,  and  in 
some  of  its  functions  by  the  sheriff,  and  it  was  an  assembly 
court  operated  in  the  same  way.  Still  more  important  is  it 
to  note  that,  so  far  as  its  judicial  action  is  concerned,  it 
was  of  concurrent  jurisdiction  with  the  shire  court,  and  it 
enforced  and  interpreted  the  same  body  of  law.  Apparently 
any  case  which  was  brought  in  one  of  these  courts  might  be 
brought  in  the  other.  What  determined  the  court  into  which 
a  particular  case  should  go  was  the  wish  of  the  parties, 
especially  of  the  plaintiff,  and  the  importance  of  the  case. 
An  insignificant  action,  or  one  concerning  people  of  low 
rank,  would  not  ordinarily  be  brought  in  the  shire  court. 
As  between  the  two  courts,  the  hundred  court  was  in  much 
more  frequent  use  in  litigation,  and  was  the  normal  and 
habitual  court  for  all  ordinary  commercial  and  police  busi- 
ness. 

The  shire  court  was  occasionally  used  by  the  central  gov- 
ernment for  administrative  purposes.  We  have  a  few  letters 
addressed  by  the  king  to  its  officers  and  apparently  through 
them  to  it.  If  the  Saxon  kingdom  had  gone  on,  it  would 
very  probably  have  developed  in  time  larger  use  of  the 
shire  assembly  in  this  kind  of  business.  But  for  maintain- 
ing local  order,  and  punishing  crime,  and  exercising  control 
over  individuals,  it  was  the  hundred  court  that  was  most 
frequently  used.  This  was  preeminently  the  police  court  of 
England,  in  so  far  as  police  matters  were  the  care  of  the 
general  government.  About  the  middle  of  the  tenth  century 
»  Stubbs,  8.  C,  80-S4. 


THE  KING'S  PEACE  25 

under  King  Edgar  a  famous  law  was  made  for  the  pursuit 
and  arrest  of  thieves,  using  the  hundred  as  a  unit  and  similar 
in  character  to  a  Frankish  arrangement  for  the  same  purpose 
of  much  earlier  date.  Edgar's  legislation  also  required  that 
every  man  should  have  a  borh,  or  some  one  of  standing  in 
the  community  who  should  produce  him  for  justice,  if  he 
should  do  wrong,  or  be  responsible  for  his  punishment,  bear- 
ing it  himself  if  the  accused  escaped.8  About  the  same  time 
also  we  get  evidence  of  the  existence  of  the  tithing,  an  insti- 
tution connected  originally,  it  is  probable,  rather  with  the 
town  than  with  the  hundred,  in  which  a  small  number  of  men, 
usually  ten  or  twelve,  were  grouped  under  a  tithing  man  and 
held  to  collective  responsibility  for  the  capture  of  criminals. 
These  two  institutions  form  the  basis  of  the  frankpledge  sys- 
tem of  Norman  times. 

One  institution  common  to  the  early  German  states  of 
whose  constitutional  history  we  have  some  knowledge  should 
not  be  overlooked  in  any  account  of  Anglo-Saxon  criminal 
law,  especially  because  of  its  importance  in  the  develop- 
ment of  the  later  law  —  the  king's  peace.  An  offence  or 
misdemeanor  was  a  breach  of  the  peace,  an  ordinary  offence 
a  breach  of  the  nation's  peace,  or  the  peace  of  the  shire,  or 
of  the  sheriff,  but  offences  committed  against  the  king,  or 
on  his  property,  or  in  his  immediate  vicinity,  as  being  a 
breach  of  his  peace,  were  punished  with  heavily  increased 
penalties.  An  extension  of  this  special,  protective  king's 
peace  might  be  granted  to  a  locality  to  be  proclaimed 
through  the  hundred  or  county  by  the  sheriff,  serving  as  an 
addition  to  the  general  peace  of  the  nation  and  carrying 
these  increased  penalties.  Special  protection  of  the  sort 
might  also  be  extended  by  the  king  by  formal  oral  or  written 
act  to  individuals,  or  places  like  highways,  or  to  special  occa- 
sions like  feast  days.  Punishment  of  a  breach  of  the  king's 
peace  was  specially  reserved  to  the  king  hiinself,  that  is  it  did 
~"s  Stubbs,  fif.  C,  83-85. 


26  THE  ANGLO-SAXON  AGE 

not  belong  among  the  pleas  falling  to  the  sheriff  as  adminis- 
trator of  the  county,  and  was  subject  to  special  penalties 
which  went  to  the  king. 

The  town  as  a  territorial  subdivision  shows  signs  of  being 
a  more  primitive  and  earlier  institution  than  the  hundred 
or  the  shire.  While  it  is  normally  a  division  of  the  hundred, 
this  is  not  true  without  exception,  for  there  were  towns 
which  formed  parts  of  more  than  one  hundred,  and  other 
towns  which  were  parts  of  no  hundred.  But  in  the  hierarch- 
ical gradation  of  local  government  and  justice,  the  state- 
ment is  accurate  enough.  The  township  community  was 
smaller  than  the  hundred  and  of  a  subordinate  place,  and  its 
police  responsibility  was  less  extensive.  In  the  great  ma- 
jority of  cases  the  town  was  actually  as  well  as  normally  a 
constituent  part  of  the  hundred  and  seems  in  Norman  and 
probably  in  Saxon  times  to  have  been  the  unit  of  the  hundred 
organization.  If  the  free  village  community  existed  among 
the  early  Saxon  settlers,  as  it  probably  did,  the  town  of  later 
times  is  its  descendant  and  represents  in  England  the  village 
or  dorf  of  which  we  get  occasional  glimpses  on  the  continent, 
even  in  the  same  relation  to  the  hundred.  Scholars  have  not 
agreed  upon  the  existence  of  a  town  court  as  a  minor  com- 
munity court,  but  the  evidence  inclines  strongly  in  its  favor, 
both  a  priori  from  the  necessity  of  a  mutual  regulation  of 
community  affairs  and  positively  from  the  character  of  the 
business  done  by  the  later  domanial  court  of  the  manor.  It 
is  into  the  manor  of  post-Conquest  days  that  the  town  dis- 
appears, and  it  is  the  domanial  manor  court  that  continues 
the  functions  of  the  town  court.  These  concerned  affairs 
of  very  minor  if  any  importance  to  the  state  as  a  whole :  the 
regulation  of  cultivation  and  the  care  of  stock,  disputes  as 
to  the  boundaries  of  tenements  wholly  within  the  town  and 
title  to  them,  and  minor  misdemeanors  and  police  offences. 
Any  case  of  importance  would  go  directly  into  the  hundred, 
not  into  the  town  court. 

The  regular  subdivision  of  the  state  as  a  matter  of  police 


TOWN  AND  LORD'S  COURT  UNITED  27 

jurisdiction  and  supervision  by  public  authorities  had  been 
to  a  considerable  extent  broken  into  by  the  time  of  the  Con- 
quest by   the  growth  of  private  institutions.     The   rise   of 
private  lordships,  the  extensive  practice  of  commendation, 
by  which  poorer  men  placed  themselves  in  a  relation  of  per- 
sonal dependence  upon  the  more  powerful  in  return  for  pro- 
tection, and  the  growth  of  forms  of  dependent  land-holding 
which  remain  rather  obscure  to  us,  were  evidently  common 
features  of  middle  and  later  Saxon  times.9     With  these  lord- 
ships, which  seem  in  many  cases  to  have  corresponded  in 
area  with  a  town  or  perhaps  with  two  or  more  towns  or 
even  with   a  hundred,  local   rights   of   jurisdiction   and   re- 
sponsibility for  local  police  became  united.     The  process  of 
such  union  was  simple  and  easy,  for  the  lord  of  many  serfs 
would  have  naturally,  without  attention  to  the  matter  by 
the  state,  the  duty  of  seeing  that  their  disputes  with  one 
another  about  their  rights  were  settled,  and  that  their  of- 
fences against  one  another  and  against  good  order  were  pun- 
ished.    When  the  lordship  came  to  agree  in  territory  with 
the  town,  it  was  almost  inevitable  that  the  original  town 
court  should  be  absorbed  into  the  lord's  court  and  the  two 
become  one.     It  would  instinctively  be  felt  to  be  absurd  to 
hold  two  courts  doing  the  same  kind  of  business  for  the  same 
community  of  people.     Perhaps  the  process  of  unsanctioned 
absorption  occurred  in  the  same  way  when  the  lordship  ex- 
tended over  a  hundred,  but  the  interest  of  the  state  was  not 
so  easily  overlooked  in  this  case  and  the  agency  of  the  king 
is   often   manifest.     He   conveyed  into   private   hands   in   a 
number   of  instances  by  formal   act   the  jurisdiction   of  a 
hundred,  or  of  a  fraction  of  a  hundred,  and  so  gave  a  legal 
recognition  to  a  result  which  had  taken  place  outside  the 
law.10      In  consequence  numerous  private  lordships  and  pri- 
vate jurisdictions  cut  into  the  normal  organization  of  local 
government    and    formed    a    substantial    foundation    for    a 

9  Perm.,  IV.,  1,  3,  5. 

w  Penn.,  IV.,  3,  13.    Cf.  Stubbs,  S.  C,  122. 


28  THE  ANGLO-SAXON  AGE 

manorial  system  and  for  the  royal  grants  of  "  liberties  " 
so  extensively  developed  after  the  Conquest. 

In  all  these  courts,  public  or  private,  the  forms  of  proce- 
dure by  which  a  case  was  tried  were  alike.  They  seem  to  us 
primitive  and  crude  but,  as  applied  by  the  common  judgment 
of  the  community,  they  probably  secured  a  rough  justice,  at 
least  they  continued  in  use  in  these  local  courts  for  two  hun- 
dred years  after  the  Conquest  and  remained  possible  of  use 
for  centuries  longer.  The  Anglo-Saxon  courts  stood  in  a 
middle  position  between  the  early  days  of  private  vengeance, 
when  the  individual  secured  justice  for  himself  with  the  aid  of 
his  kinsfolk,  and  modern  times  when  the  state  takes  charge 
of  the  whole  process  to  the  exclusion  of  private  action.  The 
individual  still  did  many  things  which  today  he  would  not 
be  permitted  to  do :  he  summoned  his  opponent  into  court, 
appointed  the  day  of  trial,  and  in  some  cases  he  executed 
for  himself  the  judgment  of  the  court.  But  the  state  had 
taken  possession  of  the  major  portion  of  the  process,  and 
it  stood  behind  the  individual  in  his  portion,  regulating  and 
enforcing  what  he  was  still  permitted  to  do. 

The  oath  played  a  great  part  in  all  these  early  trials, 
and  in  passing  judgment  on  it  as  a  means  of  securing  jus- 
tice, we  must  remember  two  things.11  First,  that  these  were 
the  courts  of  small  communities.  The  men  who  formed  the 
courts  were  neighbors  of  one  another ;  every  man's  char- 
acter was  well  known ;  their  business  concerns  were  simple 
also  and  well  known  to  each  other.  Second,  there  was  a 
genuine  belief  in  the  constant  occurrence  of  miracles.  An 
oath  was  an  appeal  to  heaven  and  such  an  appeal,  if  false, 
was  likely  to  be  terribly  punished  on  the  spot  or  later.  Sto- 
ries of  the  tragic  vengeance  of  heaven  upon  such  sinners 
were  in  common  circulation  and  commonly  believed.  It  was 
a  very  hardened  reprobate  who  could  take  an  oath  he  knew 
to  be  false  in  the  presence  of  people  who  knew  him  well,  with- 
out betraying  by  some  nervousness,  hesitation  or  change  of 
11  Penn.,  IV.,  4,  3-18. 


EARLY  COURT  PROCEDURE  29 

color,  his  sense  of  the  awful  risk  he  was  consciously  taking. 
If  he  showed  any  of  these  symptoms,  or  mispronounced  the 
formula  of  the  oath",  he  lost  his  case. 

The  parties  being  before  the  court,  tne  first  step  was  a 
foreoath  by  the  plaintiff  in  which  he  stated  his  case,  some- 
times with  others  to  support  him,  called  his  suit  or  secta, 
and  then  an  oath  in  rebuttal  by  the  defendant,  if  he  could 
take  it,  in  which  he  denied  the  plaintiff's  facts.     Then  fol- 
lowed a  judgment  of  the  court  declaring  which  of  the  two 
parties  should  make  proof.     This  judgment  indicated,  as  a 
preliminary  judgment,  the  opinion  of  the  court  as  to  where 
justice  lay.  between  the  two.     Almost  always,  if  the  defend- 
ant had  successfully  taken  the  oath  in  rebuttal,  the  proof 
was  awarded  to  him,  because  there  was  a  kind  of  natural 
presumption  in  his   favor.      But  in  special  cases,  which  do 
not   seem   to   have   been   of   common    occurrence,   the    court 
might  judge  otherwise  and  award  the  proof  to  the  plaintiff. 
Proof  was  made  in  the  following  session  of  the  court.      Some- 
times  proof  consisted   in   the   production   of   witnesses   who 
could  swear  to  their  principal's  statement  of  the  case  as  of 
something  which  they  had  themselves  seen  and  heard.     Usu- 
ally it  consisted  in  another  oath  of  the  one  who  had  been 
awarded  the  oath,  but  now  with  oath-helpers  or  compurga- 
tors, who  swore  not  to  the  justice  of  their  principal's  case 
but  that  they  believed  his  oath.     Generally  the  number  of 
oath-helpers  whom-  a  man  must  find  was  fixed  by  custom  and 
varied  according  to  the  rank  of  the  parties,  but  the  court 
might  fix  the  number  for  the  particular  case  or  decide  that 
they  must  be  found,  not  from  the  community  at  large,  but 
from  a  limited  list  of  names  which  it  drew  up.     If  the  number 
required  was  found,  the  case  was  won.     It  is  not  difficult  to 
see  the  reasons  which  underlay,  the  apparent  formalism  of 
this  procedure.      The  judgment  of  the  court  awarding  proof 
indicates  the  opinion  of  the  community  about  the  case,  but 
the  process  of  finding  the  oath-helpers  tests  that  judgment 
still  further  and  in  a  more  specific  way.     Theoretically  at 


30  THE  ANGLO-SAXON  AGE 

least  a  heavy  responsibility  for  his  opinion  on  the  case  lay 
upon  the  oath-helper.  A  man  might  easily  be  willing  to 
agree  to  a  general  judgment  in  the  defendant's  favor  and 
yet  not  be  willing  to  take  the  more  specific  oath  as  oath- 
helper.  Almost  always,  however,  the  party  to  whom  the 
oath  was  awarded  found  the  required  number  of  helpers. 
With  the  increase  of  population  and  the  growing  complexity 
of  business,  the  knowledge  of  the  communal  assembly  be- 
came less  and  less  able  to  furnish  any  real  check  on  false 
swearing,  and  in  the  last  stages  of  its  use  this  system  of 
proof   was   subject   to  many   abuses. 

A  criminal  trial  was  the  same  in  form  as  a  civil  trial,  a 
suit  between  the  injured  party,  or  his  kindred,  and  the  ac- 
cused and  the  procedure  was  the  same,  but  in  a  criminal  case 
resort  was  more  often  had  to  another  form  of  proof,  which 
might  also  be  used  in  a  civil  case,  the  ordeal.  The  ordeal 
was  in  theory  a  formal  and  solemn  appeal  to  the  judgment 
of  heaven  in  cases  where  the  court  was  too  much  in  doubt 
to  make  a  decision,  or  where  a  doubt  might  still  linger  in 
a  case  that  was  otherwise  sure  to  go  against  the  accused. 
Ordinarily  in  both  these  groups  of  cases,  the  party  went 
directly  to  the  ordeal  without  first  going  through  the  com- 
purgation process,  probably  because  that  process  was  seen 
to  be  practically  certain  to  fail,  but  among  the  Franks  cer- 
tainly, and  it  is  highly  probable  that  among  the  Saxons 
also,  if  we  may  trust  later  evidence,  a  person  who  had  failed 
to  find  the  required  number  of  oath-helpers  might  some- 
times be  allowed  a  further  chance  to  prove  his  case  by  the 
ordeal.  In  a  considerable  list  of  crimes,  the  accused  was 
by  law  deprived  of  the  compurgation  procedure  and  or- 
dered directly  to  the  ordeal.  This  was  no  doubt  upon  the 
somewhat  common  popular  judgment,  which  expresses  itself 
for  instance  in  "  lynch  law,"  that  a  man  accused  of  a  heinous 
crime  is  probably  guilty,  so  that  an  appeal  to  the  com- 
purgation procedure  would  be  useless.  The  Saxons  used  in 
their  common  practice  two  ordeals,  both  accompanied  with 


TRIAL  BY  ORDEAL  31 

solemn  religious  services,  the  ordeal  of  water  in  which  the 
person  was  bound  hand  and  foot  and  thrown  into  a  pool, 
and  his  innocence  established  if  he  sank  out  of  sight,  and 
the  ordeal  of  hot  iron,  in  which  the  person  carried  a  hot 
iron  of  prescribed  weight  a  measured  distance,  and  his  guilt 
or  innocence  was  determined  by  the  character  of  the  wound 
after  a  certain  number  of  days.12  The  ordeal  passed  out 
of  use  early  in  the  thirteenth  century,  but  other  of  the  old 
forms  of  procedure  continued  in  use  for  a  longer  time  in 
criminal  trials  than  in  civil  and  only  slowly  gave  way  to 
newer  forms. 

The  death  penalty  was  inflicted  only  occasionally  and  in 
later  Anglo-Saxon  times,  and  imprisonment  was  still  more 
rarely  used  as  a  punishment,  but  in'  general  all  crimes  could 
be"  atoned  for  by  a  money  payment  made  to  the  family  of 
the  injured  person,  the  bot,  accompanied  with  a  fine  to  the 
state  for  breach  of  the  peace,  the  write.  Every  freeman 
had  a  wergeld,  or  valuation  in  terms  of  money,  fixed  by  law 
according  to  his  rank  in  the  country,  which  was  paid  by  the 
guilty  party  if  he  was  killed  and  also  sometimes  used  to 
measure  a  fine  for  his  own  offences,  that  is,  he  was  called 
on  to  redeem  his  life.  Amounts  to  be  paid  were  fixed  also 
for  other  offences  and  varied  according  to  the  character 
of  the  offence  and  according  to  the  rank  of  the  injured  or 
offending  party,  and  differed  in  different  parts  of  the  coun- 
try.13 In  some  cases  a  criminal  who  refused  to  answer  to 
the  charge  against  him  was  declared  an  outlaw,  which  ren- 
dered him  liable  to  be  killed  at  sight  or  left  him  exposed  to 
the  old  system  of  blood  revenge.  These  criminal  punish- 
ments, as  was  the  case  with  compurgation,  became  unsuit- 
able as  the  kingdom  ceased  to  be  a  group  of  primitive  com- 
munities, and  they  disappeared  soon  after  the  Norman  Con- 
quest. 

In  addition  to  the  lordships  with  their  private  jurisdic- 

12  Cheyney,  Readings,  79. 

isstubbs,  8.  C,  70-72;  Cheyney,  Readings,  81-82. 


32  THE  ANGLO-SAXON  AGE 

tions,  another  local  variation  broke  into  the  regularity  of 
the  Saxon  territorial  organization — the  borough,  or  town 
in  the  commercial  sense.  The  origin  of  the  English  borough, 
both  as  a  separate  organization  and  as  a  center  of  popula- 
tion, has  long  been  a  subject  of  debate  and  is  not  likely  ever 
to  be  conclusively  determined.  It  seems  most  probable  that 
as  a  center  of  population  the  borough  had  more  than  one 
kind  of  origin  and  that,  whatever  attracted  people  to  settle 
at  a  given  spot,  whether  a  fortified  post  that  offered  pro- 
tection, or  the  meeting  point  of  commercial  highways,  or 
the  need  of  providing  supplies  for  the  pilgrims  to  a  popular 
shrine,  the  final  result  in  the  character  of  the  community 
and  its  constitution  would  be  the  same.  More  important 
historically  than  the  question  of  origin  is  the  fact  that  the 
forms  of  Saxon  local  organization  gave  the  borough  an 
opportunity  to  become  a  self-governing  unit  very  easily  and 
without  setting  it  apart  from  the  general  scheme  of  local 
government.  Before  the  Norman  Conquest  this  fact  had 
determined  the  direction  in  which  the  English  borough  was 
to  develop  in  relation  to  the  state.  Probably  in  the  ma- 
jority of  cases  it  was  in  origin  a  town  in  the  territorial  sense, 
or  a  part  of  a  town,  and  it  was  as  a  town  that  normally  the 
borough  appears  to  have  been  organized  and  to  have  ob- 
tained its  local  self-government.  In  some  cases  from  size 
and  importance,  or  from  historical  relation  to  the  surround- 
ing territory,  perhaps  from  both  in  the  case  of  London,  the 
borough  organization  was  that  of  a  hundred  instead  of  that 
of  a  town.  The  practical  result  was  the  same  in  both  cases, 
entire  local  self-government,  but  self-government  of  such  a 
kind  that  it  lent  itself  to  incorporation  with  other  similar 
units  in  the  larger  government  of  hundred  or  shire  instead 
stead  of  to  isolation  or  separation.  Within  the  larger  towns, 
the  wards  had  some  degree  of  local  self-government  and  stood 
to  the  borough  as  a  whole  in  a  relation  not  unlike  that  of 
the  town  to  the  hundred,  while  the  private  jurisdiction  ap- 
pears in   the  borough  also  in  the  "  sokens  "  of  neighboring 


FOUR  CLASSES  OF  SOCIETY  33 

lords,  portions  of  the  borough  territory  belonging  to  them 
and  occupied  by  their  dependents,  .over  which  1;hey  exercised 
the  same  rights  of  jurisdiction  (sake  and  soke)  as  in  their 
lordships.  Though  there  seems  to  have  been  in  the  last 
period  of  Saxon  history  a  considerable  development  of  urban 
interests,  the  borough  never  attained  the  relative  impor- 
tance in  the  national  life  that  it  acquired  in  the  first  Anglo- 
Norman  age,  an  importance  which  shows  itself  in  the  nu- 
merous town  charters,  especially  those  of  the  reigns  of  Rich- 
ard and  John. 

The  population  of  England  was  as  sharply  divided  into 
graded  ranks  as  was  the  territory  which  it  occupied.14  We 
are  confronted  here,  however,  with  the  difficulty  that  there 
seems  to  have  been  in  this  case  even  less  regularity  between 
different  parts  of  the  kingdom  than  in  the  territorial  di- 
visions. Having  regard  to  general  characteristics,  without 
reference  to  minor  differences  of  condition  or  of  technical 
terms,  there  were  four  well-marked  classes  of  men  in  the 
Saxon  state,  nobles,  common  freemen,  partially,  free  men, 
and  slaves.  It>  must  be  noticed,  however,  that  while  sharply 
distinguished  from  one  another  as  generic  classes,  these  four 
ranks,  if  we  regard  individual  men,  were  bound  together 
by  many  intermediate  grades  of  right  and  privilege  and 
position,  which  indicate  clearly  that  the  society  of  the  Saxon 
age  was  in  a  state  of  flux,  that  social  classes  were  not  fixed 
b'y  any  rules  of  caste,  and  that  movement  of  individual 
families  up  and  down  the  scale  was  easy  and  of  frequent 
occurrence.  The  fluid  condition  of  fa/mily  position  was  re- 
flected in  many  cases  in  the  numerous  gradations  of  service 
in  the  tenures  by  which  lands  were  held  within  a  given  manor. 

All  the  Anglo-Saxon  states  possessed  a  distinctly  marked 
nobility,  deriving  its  rank,  if  we  regard  the  whole  period  of 
Saxon  history,  clearly  from  two  sources :  birth  and  service  of 
the  king.  While  the  evidence  for  Kent  is  more  convincing 
than  for  the  other  states,  it  is  highly  probable  that  all  the 

i*  Stubbs,  S.  C,  88-89. 


34  THE  ANGLO-SAXON  AGE 

Teutonic  colonies  brought  with  them  into  England  a  nobility 
of  birth  which  goes  back  for  its  origin  into  the  earlier  history 
of  the  tribe.  As  the  new  conditions  established  the  monarchy 
where  none  had  existed  before,  and  strengthened  its  hold 
upon  the  state  and  upon  all  public  life,  so  personal  connec- 
tion with  the  king  and  position  in  his  service  gave  distinc- 
tion to  a  man  and  rank  which  was  reflected  in  the  law  codes 
by  a  higher  wergeld  than  for  the  common  freeman.  Doubt- 
less those  personally  connected  with  the  king  would  include 
from  the  beginning,  besides  new  men,  many  who  belonged 
to  the  old  nobility  and  the  two,  old  and  new,  would  easily 
melt  into  one  class  in  origin  indistinguishable,  save  in  the 
case  of  those  families  which  had  risen  within  a  generation  or 
two.  It  is  a  nobility  of  this  sort  which  we  find  on  the  eve 
of  the  Norman  Conquest. 

The  Anglo-Saxons  used  two  terms  to  designate  the  no- 
bility of  service,  gesith  and  thegn.  Gesith  is  the  earlier 
term  and  seems  to  denote  a  class  distinctly  military  in  char- 
acter and  connected  with  the  king  by  the  personal  tie  of 
the  comitatus  which  Tacitus  describes  in  the  thirteenth  and 
fourteenth  chapters  of  his  Gennania.1*  Soon  after  the 
settlement  these  men  appear  to  have  been  endowed  by  the 
king  with  considerable  gifts  of  land  and  to  have  become  a 
territorial  nobility,  but  still  under  a  special  obligation  of 
military  service.  Their  place  in  the  personal  service  of  the 
king,  both  as  members  of  the  comitatus  and  in  other  duties 
at  the  court,  to  some  of  which  perhaps  the  gesith  had  not 
been  held,  was  taken  by  the  thegn,  who  passes  through  in 
the  course  of  time  somewhat  the  same  transformations, 
though  rather  more  slowly  and  in  a  later  stage  of  the  his- 
tory, so  that  the  use  of  the  word  survived  the  Conquest. 
It  is  used,  however,  in  a  considerable  variety  of  senses  in 
different  parts  of  the  country. 

The  Anglo-Saxon  noble  had  some,  but  not  many,  legal 
privileges  which  distinguished  him  from  the  common  free- 
"  Stubbs,  S.  C,  62,  63. 


THE  FREE  MAN  35 

man.  His  wergeld  was  six  times  as  much,  his  oath  in  a 
court  of  justice  carried  six  times  the  weight;  he  was  exempt 
from  enrollment  in  a  tithing  and  he  might  personally  be- 
come pledge  for  the  good  behavior  and  for  the  appearance 
in  court  of  his  dependent.  Private  jurisdiction  even  over 
some  freemen  went  almost  necessarily  with  the  lands  which 
formed  his  lordship.  Though  there  was  no  legal  require- 
ment to  that  effect,  the  higher  offices  in  church  and  state 
were  apt  to  be  filled  from  this  class,  and  noble  birth  com- 
manded in  office  as  elsewhere  additional  respect.  No  right 
to  membership  in  the  witenagemot  went  with  nobility,  but 
it  was  from  the  nobles  that  the  king  summoned  those  who 
attended  any  meeting  in  addition  to  the  official  class.  In 
general  while  the  nobility  formed  a  well  defined  social  class, 
they  occupied  no  independent  place  in  the  Saxon  state  at 
the  expense  of  the  government  and  never  became  a  caste 
closed  against  families  rising  from  below. 

If  we  may  trust  the  impression  which  the  sources  of  our 
knowledge  of  early  Anglo-Saxon  society  make  upon  us,  the 
normal  member  of  the  community  was  the  free  man.  We 
call  him  often  the  common  freeman  to  distinguish  him  from 
the  noble  who  came  to  be  considered,  especially  in  feudal 
days,  the  preeminently  free  man,  the  liber  homo.  The  class 
was  one  intermediate  between  the  noble  above  and  the  wholly 
or  partially  unfree  below.  It  was  known  like  the  noble  class 
by  a  variety  of  names — ceorl,  soheman,  villanus — which  in 
different  parts  of  the  country  and  at  different  dates  had 
varying  shades  of  meaning.  In  the  earlier  periods  of  the 
history  this  class  seems  to  have  been  the  most  numerous  in 
the  state  and  its  main  dependence  and  to  have  been  con- 
sidered the  typical  class  from  which  the  position  and  legal 
value — wergeld,  oath,  etc. — of  the  other  classes  were  reck- 
oned. The  members  of  the  class  are  represented  to  us  as 
living  in  villages  from  which  they  went  out  to  work  their 
holdings  scattered  in  the  neighboring  fields.  Some  of  these 
villages  were  still  free  villages  in  1066,  managing  their  own 


36  THE  ANGLO-SAXON  AGE 

affairs  in  their  tun  motes,  but  the  majority  appear  to  have 
passed  under  the  control  of  some  lord  and  become  dependent 
upon  him.  Normally  the  holding  of  the  fully  free  man,  who 
was  not  regarded  as  a  noble,  seems  to  have  been  one  hide, 
that  is  on  the  average  120  acres,  with  the  live  stock  and  tools 
naturally  going  with  so  much  land.  But  the  size  of  the 
holdings  of  the  freemen  varied  greatly,  and  it  was  recognized 
that  the  common  freeman  might  rise  into  the  class  of  nobles 
by  the  possession  of  five  hides.  Legally  the  freemen  were 
enrolled  in  the  tithing  groups,  and  they  were  the  chief  de- 
pendence for  carrying  on  regularly  the  local  government  in 
shire  and  hundred  courts  and  for  the  army  of  the  state. 
Though  drawn  in  large  numbers  into  the  organization  of 
agriculture  which  was  steadily  forming  in  Saxon  times,  the 
manorial  system,  the  new  relation  into  which  they  were 
brought  was  economic  in  character  and  did  not,  certainly  in 
most  cases,  affect  their  legal  status.  There  is  no  doubt, 
however,  but  that,  if  the  whole  Saxon  age  is  taken  together, 
the  class  as  a  whole  was  losing  significance  and  sinking 
slowly,  economically,  socially ,  and  politically.  It  seems 
clearly  of  much  less  importance  relatively  in  the  state  at  the 
time  of  the  Norman  Conquest  than  it  is  pictured  to  have 
been  in  the  early  laws.  It  was,  however,  by  no  means  extinct 
as  a  class  and  plainly  survived  even  as  late  as  Domesday 
Book,  in  some  if  not  in  large  numbers,  in  the  possession  of 
land  not  dependent  upon  any  higher  lord. 

When  we  turn  to  those  who  were  not  fully  free  men,  the 
case  is  still  more  difficult  and  the  number  of  gradations  of 
right  and  position  more  numerous.16  If  we  begin  at  the 
bottom  and  define  the  slave  as  one  who  has  no  rights  at  all, 
as  we  must  technically,  as  one  who  is  a  chattel,  a  thing,  who 
may  be  sold  by  his  master  in  the  market  as  a  piece  of  live 
stock,  there  is  evidence  for  the  existence  of  such  a  class  among 
the  Saxons,  and  the  slave  trade  and  the  exportation  of  slaves 
were  not  brought  to  an  end  until  some  time  after  the  Con- 

i«Cheyney,  Readings,  C9-73;  Stubbs,  S.  C,  89-90. 


SLAVE  AND  SERF  37 

quest.  The  domestic  supply  of  slaves  did  not  cease  during 
the  period.  Capture  in  war,  even  of  one  Saxon  tribe  against, 
another,  and  economic  misfortune  more  or  less  constantly 
reinforced  the  class.  On  the  other  hand  it  is  clear  that  the 
general  tendency  of  things  worked  here,  somewhat  more 
slowly  than  on  the  continent  apparently,  against  the  contin- 
uance of  slavery.  The  church  taught  that  the  emancipation 
of  slaves  was  an  act  of  virtue  and  urged  that  the  right  of 
the  slave  to  property  of  his  own  earning  and  to  a  legal 
family  should  be  recognized.  Bat  in  England  as  elsewhere 
it  was  probably  economic  causes  that  worked  most  strongly 
against  slavery.  The  master  found  that  the  most  profitable 
use  to  which  he  could  put  the  slave  was  to  give  him  a  cottage 
and  a  small  piece  of  land  to  cultivate  for  himself  in  any 
time  that  might  be  left  after  the  master's  demand  for  labor 
had  been  met.  In  fact  at  first,  and  in  theory  till  the  end 
of  the  Middle  Ages,  the  house  and  land  and  all  the  chattels 
he  might  collect,  were  the  master's  property,  not  his;  but  in 
reality  the  first  step  had  been  taken  in  the  extinction  of 
slavery,  that  is,  in  the  transformation  of  the  slave  into  the 
serf,  when  he  was  allowed  to  occupy  permanently  a  house 
and  a  bit  of  land.  He  and  others  came  to  look  upon  them 
as  de  facto  his  own.  They  passed  on  to  his  son,  and  soon 
the  manorial  custom  began  to  recognize  that  they  could  not 
be  taken  away  so  long  as  the  services  to  the  lord  were  regu- 
larly rendered,  the  services,  the  custom  began  to  say,  by 
which  the  land  was  held.  Before  very  long  the  manorial 
court  began  to  concern  itself  with  the  disputes  among  heirs 
over  the  inheritance  of  these  servile  holdings,  as  the  hundred 
and  county  courts  did  with  the  disputes  of  heirs  to  free  hold- 
ings, and  to  recognize  a  right  of  transfer  and  sale  to  be 
proved  by  the  entries  on  its  own  records.  The  custom  was 
law  within  its  own  sphere,  customary  law,  manorial  law,  and 
under  it  in  process  of  time  the  slave  acquired  rights  which 
he  could  protect,  that  is,  the  slave  had  become  a  serf. 

The  serf  differs  technically  from  the  slave  in  that  he  has 


38  THE  ANGLO-SAXON  AGE 

some  but  not  all  the  rights  of  a  fully  free  man.  Medieval 
serfdom  is  the  intermediate  stage  through  which  the  slave 
labor  of  the  ancient  world  passed  into  modern  free  labor.  It 
is  in  other  words  a  transitional  stage  and,  viewed  as  a  whole, 
its  most  characteristic  feature  is  that  at  different  times  and 
in  different  places  almost  every  conceivable  intermediate 
condition  between  the  slave  and  the  fully  free  man  was  repre- 
sented ;  as  a  matter  of  fact  many  stages  of  right  and  of 
economic  advantage  often  existed  together  at  the  same  time 
and  in  the  same  manor.  Hardly  more  than  this  need  be, 
or  indeed  can  be,  said  of  the  partially  but  not  wholly  free 
class  in  England  until  we  come  to  the  more  full  evidence 
of  Norman  times.  To  some  extent  the  public  law  took  ac- 
count of  the  serf's  existence  as  a  man.  He  had  a  small 
wergeld,  the  physical  violence  or  mistreatment  of  the  master 
was  restrained,  the  right  of  marriage  recognized,  and  his 
responsibility  to  the  criminal  law  maintained  either  directly 
or  through  his  master.  It  should  be  remembered  also  that 
this  class  was  being  added  to  constantly  throughout  Saxon 
history  by  the  sinking  into  more  and  more  complete  economic 
dependence  of  those  who  had  been  originally  fully  free,  and 
these  men  not  merely  brought  with  them  some  rights  which 
they  still  retained,  but  their  decline  tended  to  bridge  the 
gulf  between  those  who  had  risen  from  below  and  those  who 
remained  free. 

Forms  of  land  holding  among  the  Saxons  show  perhaps 
less  variety  than  the  classification  of  persons,  but  they  cor- 
respond roughly  to  the  gradations  of  personal  rank.  There 
were  two  great  classes  of  land  tenure,  free  and  servile,  but 
they  as  well  as  the  kinds  of  personal  status  underwent  changes 
in  the  course  of  the  period.  There  are  indications  in  the 
economic  and  legal  institutions  of  more  than  one  German 
tribe,  Frank  as  well  as  Saxon,  that  at  the  time  of  their 
settlement  in  the  Roman  provinces  they  had  not  been  many 
generations  in  the  settled  agricultural  stage  of  development. 
The  free  village  community  with  communal  ownership  and 


FORMS  OF  LAND  HOLDING  39 

cooperative  cultivation  existed  side  by  side  with  villages 
which  were  in  the  domain  of  some  lord  and  dependent  on  him 
and,  in  England  at  least,  some  of  these  communal  villages 
survived  the  date  of  the  Norman  Conquest.  The  organiza- 
tion of  agriculture  in  them  formed  a  natural  foundation  on 
which  the  later  manorial  organization  could  easily  be  built. 
The  cultivated  land  of  the  village  was  divided  into  two  or 
three  great  fields,  each  field  being  cultivated  in  the  same  way 
each  year.  These  fields  were  divided  into  strips  for  in- 
dividual cultivation,  and  a  certain  number  of  these  strips 
were  held  by  each  family  of  the  village.  The  holding  of  the 
family  would  thus  be  scattered  about  the  fields  in  compara- 
tively small  strips,  and  the  use  made  of  them  would  be  regu- 
lated by  the  common  plan  for  the  great  fields  in  which  they 
lay,  and  their  inheritance  and  transfer  would  be  controlled 
by  the  custom  of  the  village.  Besides  the  cultivated  land 
the  village  possessed  also  extensive  common  pasture  lands, 
of  great  importance  to  the  community  in  those  times,  and 
common  woodland,  the  right  of  each  inhabitant  in  these  being 
determined  by  the  size  of  his  cultivated  holding. 

One  can  imagine  how  easily  in  turbulent  times  such  a 
community  might  be  led  to  put  itself  under  the  protection 
of  some  powerful  lord,  and  how  easily  also  in  course  of  time 
the  sums  or  services  paid  for  such  protection  might  begin 
to  be  regarded  as  resting  upon  the  land  and  elements  of 
the  tenure  by  which  it  was  held,  so  that  land  originally  free 
became  by  degrees  dependent  or  servile.  It  seems  also  cer- 
tain that  in  some  parts  of  England,  in  the  west  for  instance, 
and  possibly  everywhere  communities  were  formed  depend- 
ent from  the  beginning  on  a  lord  and  composed  mainly  of 
unfree  tenants.  The  tendency  towards  this  form  of  com- 
munity seems  to  have  been  very  steady,  checked  only  in  the 
north  and  northeast  by  the  new  Teutonic  settlement  of  the 
Danes,  a  temporary  reversion  to  more  primitive  conditions. 
As  a  result  at  the  time  the  Normans  became  the  ruling  race, 
the  lordship  was  the  rule  everywhere  and   the   free   village 


40  THE  ANGLO-SAXON  AGE 

the  uncommon  exception.  The  manor,  however,  whether  re- 
garded as  a  lordship,  as  a  legal  community,  or  as  an  agri- 
cultural organization,  does  not  seem  itself  to  have  been  so 
perfectly  developed  or  in  such  complete  possession  of  the 
country  as  it  came  to  be  after  the  Conquest. 

Looked  at  from  above,  as  the  state  might  look  at  it,  if 
the  state  could  in  those  times  regard  the  subject  as  a  matter 
of  general  law,  all  the  land  of  England  was  held  by  one 
or  the  other  of  two  titles.  It  was  either  folkland  or  book- 
land.  Folkland  was  land  not  held  by  any  written  title  or 
formal  evidence  but  by  the  customary  law  of  the  community, 
by  folklaw  or  folkright.  The  evidence  of  its  possession  was 
the  knowledge  or  memory  of  the  community,  and  disputes 
as  to  title  were  settled  in  the  local  community  courts  of 
shire  or  hundred.  Even  when  regarded  as  the  settled  prop- 
erty of  a  householder,  folkland  still  retained  traces  of  some- 
thing like  original  community  ownership.  It  could  not  be 
bequeathed  by  will,  its  inheritance  was  determined  by  the 
custom,  and  it  could  not  be  alienated  without  the  consent 
of  the  folk  directly  interested,  unless  it  were  land  which 
the  individual  had  acquired  during  his  own  lifetime  and  not 
a  part  of  that  which  he  had  inherited.  This  increment 
he  could  dispose  of  as  he  pleased. 

In  contrast  bookland  was  land  held  by  a  written  title,  a 
landbook  or  charter,  and  it  could  be  alienated  as  the  holder 
pleased,  or  left  to  his  heirs  by  will.  It  was  created  by  a 
grant  of  the  king's,  a  grant  which  was  recorded  in  the 
charter  and  made  with  the  consent  of  the  witenagemot, 
whose  consent  perhaps  corresponds  to  that  of  the  local  com- 
munity to  the  alienation  of  folkland.  These  grants  con- 
veyed large  estates  of  land,  generally  to  churches  or  monas- 
teries but  sometimes  to  nobles ;  they  often  granted  with 
the  land  freedom  from  public  burdens,  except  the  trinoda 
necessitas,  and  also  rights  of  local  lordship  and  jurisdiction; 
and  there  is  evidence  that  they  sometimes  granted  to  the 
holder  land  which  was  already  his  own  as  folkland  in  order 


PERIOD  OF  HOLDING  41 

that  he  might  be  free  to  alienate  it  or  bequeath  it.  On 
the  extinction  of  the  holder's  line,  land  held  in  this  way 
escheated  to  the  king.  Bookland  was  manifestly  a  later 
form  of  land  title  than  folkland — something  learned  by  the 
(Saxons  after  their  original  settlement,  as  they  learned  the 
use  of  the  charter  to  constitute  a  written  record. 

Land  of  either  of  these  two  kinds  could  be  conveyed  by  the 
holder  to  another  person  for  a  limited  term  by  a  written 
document  which  specified  the  conditions  on  which  it  was  to 
be  held  and  the  time  at  which  it  should  revert  to  the  donor.17 
The  period  of  holding  was  often  three  lives,  that  is,  three 
successive  holders.  Such  land  was  called  laen  land  or  loan 
land.  As  concerns  the  state  or  the  folk  such  a  loan  of 
land  made  no  change  in  the  ownership,  the  grantor  was 
still  the  owner.  As  a  consequence  of  this  fact,  the  new 
holder  became  responsible  for  such  duties  as  rested  in  the 
Anglo-Saxon  system  on  the  land  to  the  grantor  and  not  to 
the  state,  because  the  state  still  regarded  the  grantor  as 
the  responsible  owner.  As  one  of  these  duties  was  military 
service,  the  new  arrangement  created  a  relationship  in  sur- 
face appearance  not  unlike  that  of  feudal  tenure  by  mili- 
tary service,  and  it  has  sometimes  been  considered  feudal. 
The  identification  is  due,  however,  to  pressing  an  analogy  too 
far,  for  the  Saxon  tenant  did  not  hold  by  the  service,  but 
merely  asumed  an  obligation  already  resting  upon  the  land, 
and  the  new  relationship  created  no  difference  between  this 
land  and  any  land  in  the  kingdom,  whether  folkland  or 
bookland.  The  case  is  exactly  equivalent  to  the  fee-farm 
holding  in  feudal  days  when  the  tenant  assumed  the  forinsec 
services  resting  upon  the  land,  i.  e.,  the  services  due  to  the 
king  over  and  above  those  due  to  the  immediate  lord,  but  did 
not  thereby  become  a  feudal  tenant. 

In  considering  the  question  of  the  existence  of  the  feudal 
system  in  England  before  the  Norman  Conquest,  it  is  first 
necessary  to  determine  the  sense  in  which  the  word  feudal 

"Penn,  IV.  3,  8. 


42  THE  ANGLO-SAXON  AGE 

is  used.  In  ordinary  practice  the  term  is  most  commonly 
used  somewhat  loosely  and  vaguely  to  include  all  kinds  of 
dependent  relationships,  economic  or  political,  without  refer- 
ence to  their  institutional  character.  If  we  use  the  word  in 
this  sense,  there  is  no  doubt  but  that  some  of  the  practices 
which  have  been  described  above  may  be  called  feudal.  But 
the  student  of  institutions  cannot  be  contented  with  the 
vague  and  general.  He  must  make  distinctions  and  deter- 
mine the  exact  character  of  institutions  or  his  knowledge 
will  be  of  little  value,  and  many  things  will  be  misunderstood. 
And  first  of  all  in  regard  to  the  use  of  the  word  system.  If 
the  word  carries  with  it  the  meaning  systematic,  it  is  a 
wrong  word  to  use,  for  there  was  always  much  of  variety  in 
the  details  of  feudalism  as  seen  in  different  countries,  or 
even  in  different  parts  of  the  same  country.  But  feudalism 
did  bring  together  the  relationships  which  belonged  to  it, 
from  top  to  bottom,  into  something  like  an  organized  whole 
which  may  be  called  in  that  sense  a  system. 

But  little  study  of  the  feudalism  of  Western  Europe  in 
the  eleventh  and  twelfth  centuries  is  necessary  in  order  to 
see  that  it  united  in  itself  two  quite  different  sets  of  rela- 
tions and  interests.  On  one  side  we  have  the  feudalism  of 
lords  and  ladies,  of  knights  and  vassals,  of  courts  and  castles 
and  tournaments.  But  the  main  business  in  the  world  of 
this  sort  of  feudalism  was  not  chivalry  which  reached  its 
highest  development  when  this  sort  of  feudalism  had  almost 
disappeared.  Its  real  business  was  to  furnish  some  degree 
of  political  organization  to  society  at  a  time  when  the  lack 
of  common  ideas  and  the  break-down  of  the  means  of  inter- 
communication made  a  centralized  government  in  a  large 
state  an  impossibility.  This  side  of  feudalism  was  essen- 
tially political.  The  services  which  the  vassal  paid  to  his 
lord  for  the  fief  which  he  had  received  from  him  were  po^ 
litical.  By  putting  these  services  together  the  army  was 
formed,  and  the  law  court,  council  and  legislature  consti- 
tuted.     As  defence  was  the  one  great  need  of  the  time,  the 


POLITICAL  FEUDALISM  43 

aspect  of  this  side  of  feudalism  was  strikingly  military,  but 
providing  for  defence  was  by  no  means  its  only  function. 
The  baron  was  also  the  active  agent  by  whom  all  the  opera- 
tions of  government  were  carried  on.  From  his  class  the  ad- 
ministrative officers  were  drawn,  and  the  justices,  and  the 
great  officers  of  the  crown,  when  a  real  central  government 
began  to  be  reconstituted.  It  was  during  the  time  when  a 
central  government  could  exist  in  scarcely  anything  more 
than  name  that  the  great  service  of  feudalism  was  per- 
formed and  then,  if  order  was  maintained  and  law  enforced, 
it  was  due  to  the  local  baron  whose  allegiance  to  those  above 
him  in  rising  tiers  of  mesne  lords  to  the  king  kept  alive  the 
idea  and  formal  existence  of  the  state  for  better  times.  This 
sort  of  feudalism  grew  out  of  Roman  institutional  practices 
at  the  time  when  the  Empire  was  falling  to  pieces.  They 
developed  by  very  slow  degrees,  and  it  is  only  towards  the 
end  of  the  ninth  century  that  we  can  say  that  feudalism  as 
a  political  system  had  really  been  formed.  It  was  finally 
perfected  in  the  tenth  century,  and  the  great  feudal  age  of 
Western  Europe  was  the  eleventh  and  twelfth  centuries.  It 
declined  rapidly  in  the  thirteenth  and  disappeared  in  the 
fourteenth  century,  leaving  as  its  social  legacy  to  the  future 
the  modern  systems  of  nobility. 

On  the  other  hand,  this  political  organization,  when  it 
began  to  take  possession  of  society,  found  already  existing 
an  organization  of  agriculture  which  had  been  formed  dur- 
ing the  same  period  as  itself  and  under  the  influence  of  the 
same  general  causes  but  out  of  original  elements  and  institu- 
tions quite  unlike  its  own,  and  upon  this  agricultural  organi- 
zation it  based  itself.  This  was  the  manorial  organization 
which  has  been  referred  to  above  as  one  which  could  easily 
be  founded  upon  the  village  community  and  its  lands,  and 
which  will  be  described  later  more  in  detail.  Many  features 
of  this  organization  seem  superficially  parallel  to  features  of 
political  feudalism.  It  made  much  of  dependent  land  tenures 
and  of  persons  in  dependent  relations  to  a  lord;  and  it  en- 


44  THE  ANGLO-SAXON  AGE 

forced  the  private  jurisdiction  of  the  lord  over  his  unfrec 
tenants  and  occasionally  over  some  freemen.  But  the  es- 
sential institutional  characteristics  and  the  purposes  sought 
were  wholly  different.  Agriculture  was  the  chief  invest- 
ment of  capital  possible  to  the  time;  it  was  almost  the  only 
form  of  industry  that  had  survived;  and  it  was  the  agricul- 
turist who  kept  society  alive  during  the  feudal  age.  The 
baron  who  paid  the  rent  for  his  fief  in  political  services  to 
the  state  obtained  the  income  which  enabled  him  to  per- 
form them  and  to  maintain  his  rank  from  the  economic  re- 
turns of  his  domain  manors,  and  the  king  at  the  head  of  the 
state  obtained  his  chief  income  in  the  same  way  from  his 
domain  manors. 

These  two  sides  of  feudalism  had  not  merely  a  different 
origin  in  institutions  of  the  later  Empire  which  were  distinct 
from  one  another,  but  they  remained  distinct  in  institu- 
tions and  law  so  long  as  they  existed  side  by  side.  The 
feudal  age  never  confused  them.  It  always  maintained 
sharply  the  difference  between  military  tenure  and  economic 
tenure,  between  noble  tenure  and  the  servile  holding.  A 
given  piece  of  land  was  as  a  rule  held  at  the  same  moment 
under  both  kinds  of  tenure  by  two  different  men.  The 
baron  held  the  manor  from  the  king  as  a  knight's  fee  by 
the  service,  let  us  say,  of  one  knight  at  his  own  expense. 
The  greater  part  of  the  same  manor  was  held  at  the  same 
time  by  servile  and  free  tenants  whose  economic  tenures 
furnished  the  labor  by  which  the  manor  was  cultivated  and 
its  income  obtained.  But  each  tenure  was  easily  distin- 
guished from  the  other,  and  each  was  regulated  by  its  own 
rules  of  law,  enforced  in  its  own  distinct  courts.  As  these 
two  sides  of  feudalism  were  distinct  in  origin  and  remained 
distinct  during  the  great  period  of  their  history,  so  their 
ultimate  fate  was  different.  Political  feudalism  had  begun! 
to  disappear  by  the  middle  of  the  thirteenth  century  be- 
cause the  state  was  discovering  better  methods  of  getting 
its  business  done,  and  it  did  not  survive  the  fourteenth  cen- 


MANORIAL  SYSTEM  45 

tury.  Better  methods  of  agricultural  organization  were 
discovered  more  slowly,  and  the  manorial  system  remained 
in  existence  with  its  law  and  its  courts  for  two  hundred 
years  longer.  It  was  even  brought  over  into  some  of  the 
American  colonies  in  the  seventeenth  century,  and  we  now 
have  the  printed  records  of  colonial  manor  courts. 

In  Anglo-Saxon  England  the  arrangements  for  cultivat- 
ing the  land  and  for  servile  land-holding  which  have  been 
described  above  were  so  closely  parallel  to  those  of  economic 
feudalism  that  we  may  say  that  this  side  of  the  feudal  system 
had  been  established  in  England  before  the  Norman  Conquest. 
The  conditions  which  had  favored  its  growth  throughout  the 
Roman  Empire  had  existed  also  in  Britain  and,  it  is  likely, 
also  the  institutions  from  which  it  was  derived.  It  may 
perhaps  be  true  that  the  manor  in  its  complete  constitution 
was  not  generally  in  existence,  the  name  certainly  was  not, 
but  what  did  exist  is  to  be  distinguished  from  it  only  with 
difficulty,  and  but  little  was  needed  to  complete  the  manorial 
organization  of  the  country,  certainly  no  important  institu- 
tional change.  Manorial  private  jurisdiction  was  fully  de- 
veloped and  the  jurisdiction  of  local  public  courts  so  ex- 
tensively absorbed  into  it,  or  attached  to  it,  that  the  Nor- 
mans found  nothing  to  do  as  affecting  these  courts,  unless 
it  was  to  check  their  growth. 

On  the  other  hand  political  feudalism,  the  transforma- 
tion of  the  public  duties  of  the  citizen,  military  service, 
service  in  the  court  and  legislature,  into  private  obligations 
which  he  owes  to  another  man  as  a  kind  of  rent  he  pays  for 
the  land  he  has  received  from  him  and  because  of  his  per- 
sonal relation  to  him,  is  not  to  be  found.  We  do  find,  how- 
ever, primitive  and  uncombined  elements  out  of  which  it 
might  have  grown  in  time.  The  personal  relationship  of 
the  royal  comitatus  referred  to  above  seems  to  have  con- 
tinued until  rather  late  in  the  Saxon  state  and  the  members 
of  it  as  a  rule  to  have  been  settled  on  the  land  under  some- 
thing of  a  special  obligation  of  personal  loyalty  and  service 


46  THE  ANGLO-SAXON  AGE 

to  the  king.  Personal  commendation  and  the  commenda- 
tion of  land  were  considerably  developed  and  created  many 
dependent  relationships  of  free  men  and  of  free  land.  In 
some  cases  the  man  took  an  oath  of  fealty  to  his  lord  which 
comes  near  ta  the  vassal's  oath.  This  relationship  has  been 
sometimes  called  vassalage,  and  the  term  cannot  be  objected 
to  because  it  was  actually  in  use  in  the  contemporary  Frank- 
ish  kingdom  for  closely  similar  relationships  which  were 
equally  undeveloped.  But  the  term  should  not  be  under- 
stood to  mean  the  existence  of  the  later  institution.  Po- 
litical feudalism  was  created  only  by  the  union  of  personal 
vassalage  with  the  holding  of  land  upon  condition  of  public 
service.  When  the  fief  was  given  to  the  vassal  because  he 
was  a  vassal,  and  when  he  was  held  to  his  military  and  other 
services  because  he  had  been  given  a  fief,  then  the  feudal 
system  of  Western  Europe  was  in  existence.  However  far 
one  may  think  that  one  side  or  other  of  this  composite  result 
was  developed  in  Saxon  England,  there  is  no  evidence  of 
a  union  between  them  in  that  age.  The  fief  as  the  vassal's 
normal  reward  with  its  conditions  of  special  loyalty,  and 
service  as  the  tenure  by  which  it  was  held,  were  introduced 
into  England  by  the  Norman  Conquest. 

In  the  means  and  processes  of  getting  the  public  business 
of  the  state  performed,  the  Saxon  government  was  but  little 
developed  beyond  the  tribal  state  first  organized  in  Eng- 
land after  the  original  settlement.  In  theory  military  serv- 
ice at  his  own  expense  was  still  due  from  every  free  member 
of  the  community,  enforced  by  the  heavy  fine  called  fyrdwite. 
In  practice  the  settlement  of  the  freemen  on  the  land  and 
the  enlargement  of  the  state  in  size  had  brought  on  in  some 
degree  the  problems  which  had  proved  so  serious  to  the  Car- 
olingian  rulers  of  the  larger  Frankish  kingdom,  and  the 
attempt  had  been  made  to  solve  them  in  much  the  same 
way.  The  dependent  relations  into  which  many  freemen  en- 
tered with  the  growth  of  territorial  lordships,  and  the  se- 
rious  cost  of  a  summer  campaign  to  a  people  which  had 


PUBLIC  REVENUE  47 

now  become  agricultural,  made  a  general  levy  of  freemen 
a  less  secure  dependence  and  more  difficult  to  enforce.  The 
tendency  was  strong  in  later  Saxon  times  to  rest  all  obli- 
gation of  service  upon  the  land  and  to  make  the  owner  re- 
sponsible for  an  amount  of  service  corresponding  to  the  size 
of  his  holding,  or  to  allow  communities  to  become  responsible 
for  a  fixed  amount,  all  the  members  of  the  community  shar- 
ing in  common  the  expense  of  their  soldiers.  But  these 
expedients  were  not  carried  so  far  as  in  the  pre-feudal 
Frankish  state,  and  the  problem  of  securing  an  adequate 
military  service  was  still  unsolved  when  the  Conquest  oc- 
curred. 

In  the  matter  of  public  revenue,  the  machinery  of  the  state 
was  even  more  undeveloped.  There  was  no  regular  taxation 
in  the  modern  sense.  The  "  Danegeld,"  which  comes  the 
nearest  to  taxation  in  form,  was  begun  at  the  end  of  the 
tenth  century,  as  has  been  said,  to  raise  money  to  buy  off 
the  Danish  invaders.  It  was  continued  at  frequent  intervals 
in  the  eleventh  century,  except  during  the  reign  of  Edward 
the  Confessor,  at  the  rate  of  two  shillings  on  the  hide  of 
land,  but  it  did  not  become  a  regularly  recurring  annual  tax 
until  after  the  Conquest.  The  larger  part  of  the  income 
of  the  crown,  which  was  not  yet  distinguished  from  the 
income  of  the  state,  was  made  up  from  two  sources:  the 
revenues  from  the  royal  domain  lands  and  the  sums  derived 
from  the  king's  share  in  fines  and  forfeitures  in  the  local 
courts  of  shire,  hundred  and  borough.  If  we  cannot  prove 
that  these  two  sources  of  revenue  had  been  combined  to  form 
a  regular  sheriff's  ferm  before  1066,  some  progress  at  least 
towards  such  a  system  of  collection  had  been  made.  The 
combination  seems  to  have  been  made  in  local  districts  and 
occasionally  it  is  probable  in  counties  and  the  collection 
farmed  out  to  local  administrators,  perhaps  to  sheriffs.  Be- 
sides the  fines  for  offences  which  formed  a  part  of  the  later 
sheriff's  ferm,  there  were  some  criminal  offences  specially 
reserved  to  the  king,  known  later  as  pleas  of  the  crown  and 


48  THE  ANGLO-SAXON  AGE 

separately  accounted  for  by  the  sheriff.  Of  these  at  least 
three  go  back  into  Saxon  times:  breach  of  the  king's  peace, 
breaking  into  a  house,  and  interference  with  justice,  like 
the  protection  of  an  outlaw,  and  very  possibly  other  offences 
should  be  added  to  the  list,  at  least  for  parts  of  the  king- 
dom. The  fines  for  these  crimes  went  entirely  to  the 
king,  and  they  entailed  very  heavy  fines  or  complete 
forfeiture. 

There  were  not  many  other  sources  of  income  which  we 
can  say  with  certainty  were  possessed  by  the  Anglo-Saxon 
kings,  and  such  as  existed  were  not  infrequently  granted 
away  to  churches  and  favored  individuals :  tolls  of  various 
kinds  in  boroughs  and  markets  and  at  seaports ;  the  profits 
of  coinage,  then  comparatively  little  developed;  the  medieval 
right  of  shipwreck;  and  fees  for  the  grant  of  special  royal 
protection  and  for  various  rights  and  privileges.  The  state 
was  relieved  of  some  expenses  by  payments  and  services  in 
kind,  of  which  the  best  known  is  the  trinoda  necessitas,  a 
duty  resting  upon  the  land  of  keeping  bridges  in  repair, 
maintaining  and  defending  fortresses,  and  serving  in  war. 
The  exchequer  system  of  receiving  the  sheriff's  payments 
and  checking  his  accounts  does  not  seem  to  have  been  yet  in 
use,  but  there  was  a  formal  treasury  accounting  which  was 
probably  the  basis  of  the  later  practice,  and  some  exchequer 
methods  were  employed  like  the  determining  of  the  bullion 
value  of  the  coins  paid  in,  called  "  blanching." 

At  the  moment  when  the  Saxon  kingdom  was  overthrown, 
the  outlook  for  the  future  development  of  national  govern- 
ment was  not  promising.  The  power  of  the  earl  as  a  local 
viceroy  had  been  increasing  rapidly  for  a  generation  at  the 
expense  of  the  royal  power ;  a  large  part  of  the  earldoms 
had  been  gathered  into  the  possession  of  the  rival  houses 
of  Godwine  and  Leofric;  and  in  the  twenty-five  years'  reign 
of  Edward  the  Confessor  the  nation  had  been  taught  to 
regard  the  king  as  weak.  Local  as  well  as  family  rivalries 
were  making   themselves   felt,   and   the   establishment   of   a 


A  WEAKENING  KINGSHIP  49 

strong  government  by  William  the  Conqueror  undoubtedly 
made  for  a  more  rapid  and  secure  constitutional  development. 

Bibliographical  Note. —  H.  M.  Chadwick,  Anglo-Saxon  In- 
stitutions, 1905.  L.  M.  Larson,  The  King's  Household  before  the 
Norman  Conquest,  1904.  F.  Liebermann,  Die  Gesetze  der 
Angelsachsen,  3  Bde.,  1898-1916;  The  National  Assembly  in  the 
Anglo-Saxon  Period,  1913.  F.  W.  Maitland,  Domesday  Book 
and  Beyond,  1897;  Township  and  Borough,  1898.  W.  A.  Morris, 
The  Office  of  Sheriff  in  the  Anglo-Saxon  Period,  E.  H.  R.,  xxxi, 
20,  1916.  F.  Seebohm,  The  Village  Community,  1890.  Sir  P. 
Vinogradoff,  Villainage  in  England,  1892;  The  Growth  of  the 
Manor,  1911. 


CHAPTER  II 

THE  NORMAN  CONQUEST 

The  military  success  of  William  I  in  1066,  which  we  call 
the  Norman  Conquest,  was  so  great  that  the  country  lay 
entirely  at  his  disposal.  No  extensive  colonization  was  ne- 
cessary in  order  to  hold  it  under  control,  and  none  took  place, 
though  there  was  first  and  last  a  considerable  introduction 
of  French  speaking  settlers.  Accepted  as  king  by  London 
and  the  leading  men  of  the  nation  within  a  few  weeks  of 
the  battle  of  Hastings,  and  opposed  later  only  by  scattered 
and  local,  never  by  organized  or  general  resistance,  William 
apparently  could  have  done  what  he  pleased  in  changing  the 
government  of  the  country.  As  a  matter  of  fact  he  seems 
to  have  had  no  intention  of  making_changes.  Perhaps  even 
he  consciously  wished  to  make  none  at  all,  or  at  least  the 
fewest  possible.  Indeed  it  seems  accurate  to  say  that  the 
most  extensive  changes  which  he  brought  about  were  not 
made  by  deliberate  purpose  but  because  he  could  not  help 
himself.  That  is,  they  were  incidental  to  the  only  methods 
of  carrying  on  government  which  he  knew  anything  about. 
It  is  probably  also  true  that  they  seem  much  more  violent 
and  far-reaching  to  us  than  they  did  to  him  or  to  an}'one 
else  at  the  time.  Many  of  the  details  of  institutional  prac- 
tice were  alike  in  England  and  Normandy  so  that  no  change 
was  required.  In  a  few  more  important  cases  changes  were 
necessary  which  we  can  see  were  far-reaching  in  their  effects. 
In  all  these  latter  cases,  however,  tendencies  which  had  been 
going  on  for  a  long  time  had  been  bringing  the  Saxon  state 
more  and  more  nearly  to  institutional  results  similar  to  those 
which  had  earlier  been  reached  in  Normandy.     The  Norman 

Conquest  merely  carried  the  development  suddenly  forward 

50 


CHANGES  IN  CENTRAL  GOVERNMENT   51 

to  a  result  practically  the  same  as  that  which  would  have 
been  naturally  reached  in  time.  The  actual  dislocation,  ex- 
cept in  the  ownership  of  land,  was  so  slight  that  it  is  not 
strange  that  contemporaries  did  not  notice  it  sufficiently  to 
make  it  a  matter  of  record. 

The  constitutional  history  of  the  reign  of  William  I  falls 
thus  naturally  into  two  divisions :  the  changes  which  the  Con- 
quest brought  about,  and  the  institutions  which  remained 
practically  unchanged.  A  general  characterization  of  the 
two  divisions  is  possible,  if  it  is  not  pushed  too  far.  It 
was  the  general  or  central  government  which  was  changed ; 
local  institutions  were  only  slightly  affected.  It  is  impossi- 
ble, however,  in  the  treatment  of  the  subject  to  draw  a  hard 
and  fast  line  between  these  two  divisions.  In  the  central 
government  much  remained  unchanged ;  in  the  field  of  local 
government  important  changes  were  introduced  which  are 
best  considered  under  that  subject.  As  a  general  charac- 
terization the  division  holds  true  and  is  of  value  in  the  or- 
ganization of  our  material.  The  central,  or  national  gov- 
ernment became  Norman ;  the  local  remained  for  a  long 
time  Saxon. 

In  the  field  of  the  general  government  of  the  state,  two 
changes  outweigh  all  others  in  importance :  the  substitution 
of  a  stronger  royal  power  for  the  Saxon,  and  the  introduc- 
tion of  political  feudalism.  Neither  of  these  changes  was 
simple  in~charactcr,  that  is,  they  were  not  confined  to  what 
would  be  implied  by  a  strict  interpretation  of  the  terms, 
but  they  were  generic,  that  is  they  carried  with  themselves 
a  number  of  subordinate  or  closely  related  changes.  It  is 
also  true  that  these  two  sets  of  changes  cannot  be  wholly 
dissociated  from  each  other  but  are  more  or  less  inj;ej-Locked 
with  one  another  in  the  actual  situation.  It  is  as  a  matter 
oT~ convenience  that  we  consider  them  separately. 

As  we  take  up  for  examination,  here  and  later,  institu- 
tions which  are  generic  in  character  we  must  be  on  our  guard 
against  one  misconception.      It  is  sometimes  difficult  to  ex- 


52  THE  NORMAN  CONQUEST 

plain  in  language  just  what  an  institution  or  an  institu- 
tional change  really  was  in  principle  and  effects  without 
using  terms  which  seem  to  imply  that  we  are  stating  the 
ideas  which  its  own  contemporaries  had  about  it.  Such  an 
impression  would  often  be  an  error.  From  what  we  know 
of  the  whole  history  of  the  Norman  monarchy,  for  instance, 
we  can  form  a  conception  of  what  it  was  in  theory  and  in 
practice  quite  impossible  to  those  who  lived  under  it.  The 
theoretical  statement  is  ours,  not  theirs.  Men  who  were 
carrying  on  practical  affairs  in  England  did  not  theorize 
to  any  extent  about  the  character  of  their  government  be- 
fore the  middle  of  the  thirteenth  century.  But  the  account 
which  we  can  now  give  of  an  institution  or  a  historical  trans- 
formation, in  language  which  makes  its  character  clear  to 
us,  may  be  quite  accurate  as  an  historical  characterization, 
though  it  might  not  have  been  possible,  or  even  intelligible, 
to  the  actors  who  were  making  the  history  of  the  time. 

Potentially  the  Anglo-Saxon  kingship  was  powerful,  and 
it  had  been  so  actually,  as  operated  by  Canute,  but  prac- 
tically for  a  long  generation  before  the  Conquest  it  had  been 
in  weak  hands  and  had  been  overshadowed  by  the  great  earl- 
doms of  the  later  Saxon  period.  Still  more  important  both 
practically  and  institutionally  were  the  facts  that  there  was 
in  England  no  tradition  of  well  established  and  long  con- 
tinued strong  central  government  such  as  attached  to  the 
rule  of  the  Norman  dukes,  and  that  there  was  no  definite 
institutional  organization  through  which  a  strong  govern- 
ment could  be  carried  out.  In  both  these  respects  the  Nor- 
man government  of  1060  was  no  doubt  inferior  to  that  of 
John  in  1210,  but  it  was  nevertheless  a  great  advance  upon 
that  of  Edward  the  Confessor  at  the  former  date.  With 
time  and  with  kings  of  foresight  and  skill,  a  powerful  mon- 
archy could  no  doubt  have  been  built  on  the  Saxon  founda- 
tion. What  actually  happened  was  that  the  Norman  mon- 
archy with  its  traditions  and  its  practices  was  substituted 
bodily  and  at  a  stroke  for  the  Saxon.     The  Saxon  disap- 


ROYAL  ABSOLUTISM  53 

peared  completely ;  the  Norman  took  its  place,  in  posses- 
sion of  the  field  as  exclusively  in  England  as  in  Normandy. 

The  Norman  monarchy  did  not  owe  its  power  nor  the 
place  which  it  occupied  in  government,  to  any  ideal  which 
the  men  of  that  time  cherished  of  what  the  kingship  ought 
to  be,  nor  to  any  theoretical  conception  of  the  state  and  its 
constitution.  In  another  century  ideals  of  what  the  king- 
ship ought  to  be  do  play  a  part  in  English  institutional 
history,  but  we  cannot  detect  their  influence  in  the  change 
in  the  character  of  the  central  government  wrought  by  the 
Conquest.  The  duke  of  Normandy  simply  transferred  his 
government  to  England  with  such  of  its  practices  and  insti- 
tutions as  he  thought  necessary.  He  became  all  powerful 
jn  England  because  he  had  been  and  was  all  powerful  in 
Normandy.  As  a  matter  of  fact  neither  he  nor  any  one 
else  thought  anything  about  it.  It  was  the  only  natural 
thing  to  do,  and  a  change  was  made  without  remark  or  con- 
sciousness which  was  really  revolutionary  in  its  consequences. 

On  what  material  and  constitutional  advantages  the  royal 
absolutism  was  based  will  be  pointed  out  hereafter,  but  it 
must  be  emphasised  at  once  that  it  was  an  absolutism.  In 
the  construction  and  machinery  of  the  Norman  state  no 
normal  and  constitutional  way  was  provided  by  which  a  will 
opposed  to  the  king's  could  act  or  even  express  itself. 
Feudal  law  did  provide  a  way  which  will  be  considered  later, 
but  hardly  one  which  we  should  call  constitutional.  It  im- 
plied rebellion  and  civil  war  as  its  means  of  operation  and 
the  first  step  towards  modern  constitutional  government  in 
Magna  Carta  a  hundred  and  fifty  years  after  the  Conquest 
was  to  invent  a  method  of  giving  effect  to  a  will  opposed  to 
the  king's  without  civil  war.  Meantime  the  state  was  the 
king  quite  as  truly  as  in  the  France  of  Louis  XIV.  The  offi- 
cers of  the  state,  justiciar,  and  treasurer,  and  sheriff,  were 
his  personal  servants.  The  machinery  of  the  state,  above  the 
merely  local,  was  his  machinery.  The  force  which  operated 
it  was  his  will.     If  the  king  was  strong  and  ruled  firmly, 


54  THE  NORMAN  CONQUEST 

the  state  was  in  good  order.  If  he  was  weak  and  vacillat- 
ing, it  fell  to  pieces.  More  specifically  the  area  of  the  state 
was  his  lordship  and  domain,  like  the  manor  of  a  baron ; 
its  revenues  were  his  private  income.  Justice  was  his  and 
he  assumed  for  himself  the  right  to  enforce  it  upon  all;  an 
offence  against  the  law  was  an  offence  against  him  per- 
sonally; justices  and  courts  were  his  instruments.  Even  the 
great  council,  the  national  assembly,  existed  to  do  his  busi- 
ness7"~not~~the  nations ;  U  had  no  right  of  initiative  except 
by  petition ;  its  decisions  were  his  decisions,  and  invalid  if 
he  did  not  make  them  his,  a  fact  which  becomes  the  sover- 
eign's absolute  veto  in  the  modern  state.  In  a  word  the 
king  assumed  that  the  state  and  all  its  belongings  and  all 
its  actions  were  his,  and  this  was  really  true  in  England 
as  hardly  anywhere  else  in  the  history  of  western  Europe. 
It  was  the  fact  of  course  that  the  king  did  not  maintain 
himself  in  this  position  of  supreme  power  by  assertion  merely. 
There  were  certain  solid  advantages  which  he  enjoyed  which 
were  the  material  basis  of  his  strength.  In  the  first  place, 
-and  most  important,  the  king  had  a  decided  military  su- 
periority over  any  combination  likely  to  be  formed  against 
him.  This  superiority  rested  upon  two  things — first,  the 
king's  greater  feudal  resources,  and  second,  the  general  levy 
or  iyrd.  The  king's  feudal  resources  were  of  two  kinds. 
In  the  first  place  he  retained  in  his  own  hands  as  domain 
lands  about  twice  as  many  manors  as  he  gave  to  any  single 
baron  and,  if  his  two  half-brothers  be  excepted,  he  retained 
a  much  larger  proportion  of  the  resources  of  the  whole  king- 
dom. These  were,  however,  domain  manors  and  contributed 
only  indirectly  to  military  strength.  They  formed  an 
economic  domain  only,  not  a  political  royal  domain,  which 
had  no  need  to  exist  in  England  because  the  king  possessed 
his  whole  kingdom  as  the  French  king  possessed  the  royal 
domain  only.  These  manors  were  the  source  of  the  king's 
wealth  which  was  much  greater  than  that  of  any  baron,  but 
they  were  at  the  same  time  the  main  source  of  what  we  should 


CHIEF  BASES  OF  ROYAL  POWER  55 

call  the  revenue  of  the  state.  The  king's  private  wealth 
had  to  bear  the  chief  burden  of  carrying  on  the  government, 
but  to  some  extent  it  did  contribute  to  his  military  strength 
for  the  practice  of  retaining  knights  at  pay  for  their  mili- 
tary service  was  in  use,  and  by  barons  as  well  as  by  the 
king.  More  important  probably,  was  the  second  of  the 
king's  feudal  resources,  the  knights  fees  held  directly  of  the 
crown,  i.e.,  m  capite,  upon  condition  of  military  service. 
Many  of  these  were  quite  small  holdings,  one  knight's  fee  or 
less,  at  least  in  days  not  long  after  William  I,  but  held,  by 
a  military  not  an  economic  tenure.  Then  there  were  the 
holders  of  from  one  to  five  fees,  still  reckoned  usually  as 
minor  barons,  and  these  it  would  be  exceedingly  difficult  to 
bring  together  into  a  combination  against  the  king.  Above 
these  were  the  holdings  of  the  major  barons  up  to  the  796 
manors  of  William's  brother  Robert  of  Mortain  or  the  439 
of  his  other  brother  Odo  bishop  of  Bayeux.  These  barons 
also  it  would  be  difficult  to  combine  together  in  any  one 
movement  against  the  king,  and  it  never  was  done  even  in 
the  great  rebellion  of  1173.  It  was  easy  for  the  king  to 
unite  his  military  strength ;  it  was  far  less  easy  for  the  barons 
to  bring  theirs  together.  The  fyrd,  as  the  Saxons  called 
the  general  levy  of  the  common  freemen,  still  remained  an 
added  resource  of  the  king's,  and  practically  more  effective 
at  this  date  than  the  general  levy  in  the  other  feudal  states 
of  Europe.  In  the  rather  serious  baronial  insurrections  at 
the  beginning  of  the  reign  of  Henry  I  and  in  1173,  it  ren- 
dered important  service  to  the  king. 

The  king's  greater  wealth  and  greater  military  strength 
were  undoubtedly  the  chief  material  bases  of  his  power, 
but  other  things  contributed  to  it.  Especially  important 
was  the  fact  that  feudalism  as  it  had  been  interpreted  in 
Normandy,  and  as  it  was  transfer  red  to  England,  made  it 
difficult  for  the  baron,  whatever  the  size  of  his  barony,  to 
make  it  into  anything  like  an  independent  state.  Where 
such  a  baronial  state  arose  on  the  continent,  circumstances 


56  THE  NORMAN  CONQUEST 

made  it  easy  for  the  baron  to  assume  and  keep  in  his  hands 
the  administrative  functions  of  the  government  through- 
out a  district  and  to  break  off  all  judicial  dependence  of 
the  local  courts  upon  the  national.  To  be  independent  of 
the  king  administratively  and  judicially  was  to  be  really 
independent,  whatever  theoretical  dependence  there  might 
be.  No  such  independence  was  possible  in  England.  The 
king  always  kept  a  firm  hand  on  the  local  administrative 
officer,  the  sheriff,  and  though  extensive  grants  were  made 
of  rights  of  jurisdiction  to  monasteries  and  private  lords, 
even  including  the  execution  of  criminals  in  certain  cases, 
these  "  liberties  "  were  practically  an  interference  with  local 
rather  than  with  national  justice — they  were  indeed  hardly 
felt  during  the  Norman  period  to  be  an  interference  with 
justice  at  all.  The  royal  supervision,  as  exercised  by  the 
curia  regis,  over  the  local  administration  of  justice  was  more 
close  and  effective  than  ever  before,  and  at  this  time  the 
chief  advantage  to  the  lord  from  possessing  a  "  liberty," 
and  the  chief  loss  to  the  state  in  granting  it,  was  financial 
— the  transfer  to  a  private  individual  of  the  profits  from 
the  courts.  No  baron  however  powerful,  was  released  from 
his  own  responsibility  to  the  justice  of  the  king,  and  his 
tenant  always  had  an  appeal  from  the  worst  abuses  even 
of  the  baronial  court  proper  to  the  royal  protection.  The 
English  baron  also  never  had  a  right  to  maintain  his  castle 
against  the  king.  The  castle  was  the  king's,  the  baron  was 
its  governor  for  the  king.  In  rebellion,  but  in  rebellion 
only,  the  baron  defended  his  castle  against  the  sovereign. 

There  were  also  certain  moral  advantages,  less  material 
but  no  less  real,  which  the  king  possessed.  The  anointing 
in  the  ceremony  of  coronation  made  him  a  consecrated  king. 
In  the  feeling  of  the  time  it  gave  him  a  special  divine  right 
and  made  rebellion  seem  to  have  to  some  extent  at  least 
the  character  of  sacrilege.  Again  it  was  the  Norman  prac- 
tice, coming  down  from  the  earlier  Frankish  state,  that  each 
rear  vassal  in  swearing  allegiance  to  his  lord  reserved  his 


THE  NORMAN  EARL  57 

allegiance  to  the  king,  and  the  king  occasionally  took  from 
all  holders  of  land  a  direct  oath  of  fidelity  to  himself.1  In 
times  of  actual  rebellion  this  oath  did  not  hold  rear  vassals 
as  a  class  to  their  allegiance  to  the  king,  but  it  must  have 
made  organized  insurrection  a  little  more  difficult  and  have 
acted  as  a  deterrent  in  individual  cases.  Altogether  the 
Norman  king  of  England  was  the  most  powerful  element 
in  the  state,  and  the  most  powerful  sovereign  in  the  Europe 
of  that  day.  His  preponderance  of  power  was  so  great 
that  even  the  palatine  earldoms,  where  the  king's  writs 
did  not  run,  which  had  an  administrative  and  judicial  in- 
dependence, and  which  were  large  and  fairly  compact  prin- 
cipalities, never  asserted  a  political  independence  for  them- 
selves. 

In  Saxon  times,  as  we  have  seen,  two  officers  represented 
the  central  administrative  and  governmental  system  in  the 
shires  and  connected  the  national  and  the  local  governments, 
the  ealdorman .  or  earl  and  the  sheriff.  In  their  govern- 
ment at  home  the  Normans  had  been  prepared  to  understand 
and  go  on  with  both  these  offices.  The  vassal  counts  of 
the  Norman  duke  differed  very  decidedly  from  the  original 
Saxon  ealdorman.  They  were  more  feudal,  less  official.  As 
the  result  of  changes  which  followed  the  Danish  conquest, 
the  later  Saxon  earl  approached  the  Norman  type  more 
nearly  but  still  was  not  the  same.  The  Norman  Conquest 
made  still  more  extensive  changes.  The  Saxon  name"  earl  " 
survived  but  practically  nothing  else  of  the~older  inst|jju£io_n. 
The  earl  after  1066  was  not  in  any  sense  an  officer.  He 
still  took  his  title  from  a  shire,  which  began  now  to  be  called 
a  county,  and  he  still  received  at  least  in  some  cases  the 
"  third  penny  "  of  its  judicial  revenues  but,  except  in  the 
case  of  the  palatine  earldoms,  he  had  nothing  to  do  with  its 
government.  The  name  is  a  title  merely,  indicating  rank 
in  the  baronage  and,  if  it  carried  anything  else  with  it  in  a 
particular  case,  that  had  to  be  indicated  by  a  special  grant. 

iStubbs,  8.  C,  96. 


58  THE  NORMAN  CONQUEST 

By  such  grants  extensive  royal  rights  of  jurisdiction  and 
administration  were  conveyed  to  the  palatine  earldoms,  espe- 
cially of  Chester  on  the  Welsh  border,  and  of  Durham,  held 
by  the  bishop,  on  the  Scottish.  These  departures  from  the 
ordinary  practice  in  England  were  apparently  fully  justi- 
fied for  military  reasons  by  the  constantly  disturbed  con- 
dition of  the  borders.  In  general,  however,  the  earldom  as 
an  official  institution  disappeared  with  the  Conquest. 

The  Normans  were  also  prepared  to  understand  the  office 
of  the  Saxon  sheriff,  even  more  clearly  than  the  position 
of  the  earl.  They  had  inherited  from  the  West  Frankish 
empire  the  office  of  viceco-mes,  or  rejpj^sentative  of  the  count, 
the  count's  deputy  either  in  the  whole  or  in  a  local  division 
of  his  territory.  The  territory  of  the  count  of  Normandy 
was  so  large  that  he  naturally  employed  a  number  of 
vicecomites  in  different  districts  in  which  they  looked  after 
his  interests  and  performed  financial  duties  very  much  like 
those  of  the  Saxon  sheriff.  The  English  office  was  probably 
better  worked  out  and  more  definite  in  character  than  the 
Norman  at  the  time  of  the  Conquest  and  apparently  it  be- 
came the  leader  in  the  development  which  followed  in  both 
states,  a  development  which  was  a  logical  continuation  of 
the  Saxon  history  of  the  office. 

The  sheriff  shared  as  a  matter  of  course  in  the  increased 
power  of  the  king  beeause  he  was  the  king's  representative 
in  the  shire,  enforcing  his  rights  and  protecting  his  inter- 
ests. On  the  other  hand  the  local  power  of  the  sheriff  sus- 
tained and  rendered  effective  the  central  government,  for  he 
was  in  Norman  as  in  Saxon  times  the  chief  instrument  of 
centralization.  A  great  baron  of  the  shire  was  usually  ap- 
pointed its  sheriff,  sometimes  of  several  nearby  shires  also, 
more  rarely  with  some  hereditary  right  to  the  office,  but 
the  danger  which  had  been  so  serious  from  the  counts  in  the 
later  Carolingian  state,  that  the  office  would  be  turned  into 
a  family  possession  and  made  the  center  of  an  independent 
principality,  was  avoided  in  England.     The  Norman  mon- 


THE  NORMAN  SHERIFF  59 

archy  was  too  strong.  It  was  able  to  keepjjie  sheriff  in  the 
position  of  an  officer  of  the  government  and  hold  him  to  a 
strict  accountability,  and  even  to  prevent  in  the  main  the 
financial  oppression  of  the  smaller  people  of  the  county 
which  the  sheriff's  opportunities  made  a  constant  tempta- 
tion. Not  very  long  at  any  rate  after  the  reign  of  William 
I,  if  not  in  his  time,  the  sheriff  paid  into  the  king's  treasury 
a  definite  sum  for  the  county,  which  had  been  fixed  upon  as 
representing  fairly  the  annual  return  to  the  government. 
This  sum,  called  the  sheriff's  ferm  or  farm,  the  rent  which 
he  paid,  was  made  up  from  two  sources,  the  income  from 
the  king's  domain  manors  in  the  county,  and  the  proceeds 
of  justice  in  the  local  courts.  After  paying  his  ferm  what- 
ever surplus  remained  was  the  sheriff's  own,  his  compensa- 
tion, but  the  counties  -were  never  put  up  to  the  highest  bidder. 
Besides  his  relation  to  the  local  justice  of  shire  and  hun- 
dred, which  continued  the  same  as  in  Saxon  times,  the 
sheriff  was  intimately ^onclFfned  wTEH  T;he  new  royal  local 
justice  which  was  introduced  by  the  Normans.  In  the 
locaTking's  court,  which  begins  to  be  somewhat  frequently 
employed  by  William  I  to  carry  the  curia  regis  into  the 
counties,  and  which  was  held  by  authority  of  a  royal  writ 
naming  justices  to  preside,2  the  sheriff  was  often  commis- 
sioned as  the  justice  or  one  of  them.  The  fines  imposed  in 
these  courts,  he  collected  as  something  additional  to  his 
ferm,  and  his  office  shared  the  increased  importance  of  the 
king's  peace  and  of  the  pleas  of  the  crown,  which  will  be 
later  considered.  In  the  end  this  new  system  of  royal  jus- 
tice was  to  be  one  of  the  chief  causes  in  undermining  the 
sheriff's  power,  but  at  first  it  added  to  it.  The  great  age 
of  the  sheriff,  as  the  indispensable  agent  of  the  central  gov- 
ernment was  from  the  Conquest  to  past  the  beginning  of 
the  thirteenth  century.  During  most  of  this  period  he  was 
the  chief  instrument  through  which  the  government  acted 
"TnTfihe  local  units  of  the  kingdom  and  secured  the  necessary 

2  A.  and  S.,  2. 


60  THE  NORMAN  CONQUEST 

centralization.  He  was  at  once  responsible  to  the  national 
government  for  its  interests  in  local  financial  matters,  in 
maintaining  order,  in  the  administration  of  justice,  and  in 
getting  out  the  military  service  due  the  state.  It  was  when 
the  state  in  the  thirteenth  century  began  to  get  better  ways 
of  looking  after  these  interests  that  the  power  and  impor- 
tance of  the  sheriff  rapidly  declined,  and  he  became  finally 
but  little  more  than  the  executive  officer  of  the  courts. 

In  no  department  of  the  public  life  of  England  did  the 
coming  in  of  a  stronger  monarchy  lead  to  more  immediate 
change  than  in  the  church,  and  in  two  contrary  directions. 
The  church  became  at  once  less  independent  and  morejjj=- 
dependent.  Before  the  Conquest  William  had  held  the  Nor- 
man church  under  a  far  stronger  control  than  the  central 
government  had  been  able  to  exercise  at  any  time  in  Saxon 
history.  This  power  he  transferred  in  full  to  England  and 
began  a  supremacy  of  the  state  which,  though  later  weak- 
ened and  at  times  greatly  weakened,  was  never  entirely  lost. 
The  historian  Eadmer,  writing  about  twenty  years  after 
the  death  of  William,  said  that  it  was  the  king's  purpose 
to  exercise  the  same  rights  over  the  church  in  England  which 
he  and  his  fathers  had  possessed  in  Normandy,  and  he  states 
three  rules  governing  the  relation  between  church  and  state 
under  William  which  were  certainly  long  observed  and  funda- 
mental in  this  field  of  public  law.3  They  were  that  no  pope 
should  be  recognized  in  England  without  the  king's  consent, 
nor  papal  letters  received  which  had  not  first  been  shown 
to  him;  that  no  enactments  of  English  councils  should_  be 
valid  without  his  approval ;  and  that  barons  and  officials 
of  the  king  should  not  be  put  on  trial  in  the  church  courts, 
nor  excommunicated,  nor  constrained  by  severe  ecclesiastical 
penalties  without  his  consent.  The  church  was  brought  un- 
der a  stricter  control  by  the  general  government  than  it  had 
been  before  subject  to,  but  at  the  same  time  its  national 
organization  was  improved,  the  standard  of  clerical  morals 

aStubbs,  8.  C,  96;  Cheyney,'  Readings,  110, 


THE  CHURCH  61 

and  learning  was  advanced,  and  the  way  was  opened  for  the 
influence  of  the  Cluniac  reformation  which  till  then  had  been 
little  felt.  The  English  church  was  also  brought  into  clojscr 
relation  with  the  monarchical  papacy  which  was  just  then 
becoming  more  highly  centralized  and  more  imperial.  Later 
these  changes  were  to  lead  to  severe  conflicts  between  church 
and  state  in  England,  but  at  first  their  influence  was  wholly 
good. 

Another  measure  of  institutional  importance  gave  greater 
independence  to  the  church.  By  a  notification  sent  out 
probably  early  in  his  reign,  William  made  known  an  act 
of  a  legislative  character  by  king  and  great  council  declar- 
ing the  separation  of  ecclesiastical  and  secular  courts.4  For"" 
the  future  no  bishop  was  to  hold  ecclesiastical  pleas  in  the 
hundred  court  but  only  at  such  places  as  he  should  appoint 
and  solely  according  to  canon  law.  Secular  persons  were 
no  longer  to  have  a  share  in  the  making  of  spiritual  judg- 
ments, though  the  officers  of  the  state  were  to  assist  in  en- 
forcing them  if  necessary.  By  this  measure  not  merely  was 
an  independent  jurisdiction  given  to  the  English  church 
courts  but  the  country  was  opened  to  the  full  influence  of 
the  canon  law,  just  then  forming  into  a  great  and  scientific 
body  of  law.  At  the  same  time  greater  freedom  from  secular 
interference  was  given  to  the  national  church  council,  se- 
curing it  more  independence  in  legislation  though  it  was  still 
subject  to  the  royal  veto. 

The  change  in  the  general  aspect  and  interpretation  of 
the  constitution  which  was  made  by  the  introduction  of  feud- 
alism has  been  briefly  indicated  in  the  first  chapter.  It 
is  so  difficult,  however,  for  the  modern  mind  to  understand 
feudalism  and  its  operation,  and  the  effect  of  its  introduction 
was  so  great,  that  some  repetition  is  desirable.  A  clear  per-  • 
ception  of  the  distinction  between  political  and  economic 
feudalism,  for  instance,  is  essential  to  any  understanding 
of  the  system  in  operation,  but  it  is  not  easy  to  gain.     It 

*Stubbs,  S.  C.,  99;  A  and  S.,  1. 


62  THE  NORMAN  CONQUEST 

was  political  feudalism  which  was  new  to  England,  and  in 
constitutional  history  Norman  feudalism  must  be  conceived 
of  not  chiefly  as  a  social  organization,  nor  as  a  method  of 
giving  endowment  and  rank  to  a  national  nobility,  but  as  a 
means  of  carrying  on  government.  Economic  feudalism  al- 
ready existed  in  England  considerably  developed,  but  as  a 
result  of  the  Conquest  it  was  probably  extended  geograph- 
ically throughout  the  kingdom  and  it  was  perfected  and 
made  more  definite. 

Let  us  begin  with  this  proposition :  During  the  feudal 
age  two  different  men  held  the  same  piece  of  land,  by  two 
different  kinds  of  tenure,  under  two  different  systems  of 
law.  On  each  of  these  two  sides  of  feudalism  the  unit  is 
the  same  piece  of  land.  On  the  economic  side  it  is  known 
as  the  manor,  on-  the  political  as  the  knight's  fee.  As  a 
manor  it  is  a  unit  in  the  agricultural  organization  of  the 
kingdom,  and  its  purpose  is  economic,  that  is,  it  is  regarded 
as  a  source  of  income.  Its  cultivated  area  is  divided  into 
two  portions,  the  lord's  domain  and  the  "  tenures,"  or  hold- 
ings of  the  free  and  servile  dwellers  in  the  manor.  The 
tenants  in  the  manor  hold  their  lands  of  the  lord  by  a  variety 
of  services  and  payments  in  kind  to  which  they  are  held.5 
In  the  eleventh  century  actual  money  payments  were  rela- 
tively unimportant.  Pa}rments  in  kind  were  of  real  value 
to  the  lord,  and  the  labor  services  which  were  due  him  were 
used  to  cultivate  his  own  domain  lands,  from  which  his  chief 
income  was  derived. 

The  services  of  the  free  tenants  differed  at  this  time  from 
those  of  the  servile  tenants  chiefly  in  the  fact  that  they 
were  fixed  in  amount  and  could  not  be  varied  at  the  will  of 
the  lord.  Free  and  servile  alike  must  attend  and  consti- 
tute the  court  of  the  manor,  or  domanial  court,  from  which 
the  lord  obtained  considerable  income.  This  court,  how- 
ever, had  no  governmental  function,  except  the  simplest 
police  justice,  corresponding  to  that  of  the  township  only, 

BCheyney,  Readings,  212-217;  Penn.,  Ill,  5,  3-32. 


ECONOMIC  AND  POLITICAL  SYSTEMS        63 

and  in  all  the  organization  of  the  manor,  and  all  the  services 
rendered  to  the  lord,  the  purpose  was  plainly  economic.  It 
was  to  furnish  the  lord  with  the  income  which  enabled  him 
to  perform  the  feudal  obligations  which  he  had  assumed  to- 
wards his  lord  and  to  maintain  his  place  in  the  society  of 
his  time.  A  manor  so  held  "  in  hand  "  by  the  lord,  and 
used  for  income,  was  called  a  "  domain  manor,"  the  word 
"  domain  "  being  used  in  a  slightly  different  sense  from  its 
use  with  reference  to  the  domain  land  within  the  manor; 
but  its  use  was  economic,  contrasting  the  manors  used  for 
income  with  those  which  the  lords  granted  to  their  vassals  on 
a  tenure  of  feudal  services.  All  ranks  in  the  feudal  hierarchy 
must  have  their  domain  manors  from  the  simple  knight  whose 
only  manor  must  be  held  in  domain,  through  the  various 
grades  of  barons  who  must  keep  "  in  hand  "  manors  enough 
to  maintain  their  rank,  to  the  king  at  the  top  whose  domain 
manors  greatly  exceeded  in  number  those  of  the  richest  baron, 
partly  because  he  must  meet  some  of  the  expenses  of  the 
state  from  their  income. 

This  body  of  domain  manors,  with  the  economic  services 
by  which  the  lands  were  held  within  the  manors,  and  the  cus- 
tomary law  by  which  the  holdings  were  regulated  in  the 
domanial  courts,  is  the  economic  feudal  system.  The  po- 
litical feudal  system  was  a  coordinate,  coincident  scheme,  in 
which  the  same  manors  were  held,  but  by  a  quite  different 
set  of  services,  regulated  by  their  own  law.  The  king  was 
at  the  head  of  this  hierarchy  also.  As  such  he  was  the 
owner  of  all  the  land  of  the  kingdom,  or  sometimes  to  be 
entirely  logical  the  feudal  lawyers  said  that  he  held  the 
kingdom  of  God.  All  other  holders  of  land  at  any  rate  were 
tenants,  tenants  in  chief  of  the  king  or  of  some  mesne  lord 
who  stood  between  them  and  the  king.  Of  the  land  of  the 
kingdom,  which  came  by  degrees  all  of  it  to  be  considered  as 
contained  in  manors,  the  king  retained  "  in  hand  "  a  certain 
number  of  manors  _as  domain  manors.  The  others  he  di- 
vided out  among  his  tenants  in  chief  according  to  their  rank, 


64  THE  NORMAN  CONQUEST 

great  barons  and  minor  barons.  The  services,  which  he  ob- 
tained in  return  from  these  tenants  were  political  in  char- 
acter and  by  them  the  state  got  the  larger  part  of  its  busi- 
ness done.6  The  most  common  service  was  military,  and 
the  feudal  system  was  the  chief  dependence  of  the  state  for 
its  army.7  In  the  same  way,  as  the  payment  of  another 
feudal  service,  it  got  its  central  great  council  or  curia  regis 
which  was  at  once  national  council,  legislature  and  highest 
court.  Even  when  the  central  court  began  to  cast  off  by 
differentiation  judicial  institutions  which  were  of  a  more  fixed 
character,  practically  permanent  and  becoming  professional, 
the  idea  still  lingered  that  the  justices  were  barons  and  the 
peers  of  all  other  barons.  Even  the  central  administrative 
machinery  was  manned  and  operated  chiefly  by  vassals  of  the 
king  who  were  paid  not  salaries  but  manors  to  be  held  by 
these  services.  The  practice  of  the  time  distinguished  be- 
tween manors  held  by  services  of  this  kind  and  those  held 
by  military  services.  The  former  were  called  serjeanties, 
grand  serjeanties  if  the  services  were  clearly  honorable  in 
character,  petty  serjeanties  if  the  services  were  insignificant 
or  more  nearly  of  a  menial  nature,  but  serjeanties  were 
feudal,  though  not  military,  tenures.  They  endowed  the 
civil  service  of  the  feudal  age. 

The  tenant  in  chief  on  receiving  his  fief  did  the  same 
thing  with  it  that  the  king  had  done.  Let  us  say  for  ex- 
ample's sake  that  the  king  grants  to  the  earl  of  Surrey  80 
manors  for  the  service  of  40  knights.  The  earl  retains  30 
manors  as  his  domain  manors  and  enfeoffs  vassals  in  the  re- 
maining fifty  for  the  service  of  45  knights,  for  it  was  the 
general  rule  that  the  great  baron  enfeoffed  more  knights 
than  his  service  to  the  king  called  for,  so  as  to  increase  his 
own  social  and  political  consideration.  This  process  of 
enfeoffing    rear-vassals    was    called    sub-infeudation.8      The 

«Cheyney,  Readings,  131-136;  Perm.,  IV.,  3,  15-32. 
7Stubbs,  8.  C,  96-97;   Penn.  IV.  3,  28-32. 
8  Penn.,  IV.  3,  21-23,  29. 


FEUDAL  SERVICES  65 

earl's  vassals  did  the  same  with  their  fiefs  and  so  on  down 
to  the  unit,  which  we  have  assumed  at  the  bottom,  the  simple 
knight  holding  a  single  manor.  Each  of  these  vassals  from 
top  to  bottom  assumed  not  merely  the  obligation  of  military 
service  but  also  of  all  the  customary  feudal  services,9  includ- 
ing that  of  court  service,  and  each  lord  maintained  his  own 
baronial  court,  if  he  had  feudal  tenants  enough  to  justify 
it,  in  which  the  cases  of  his  vassals  concerning  their  hold- 
ings and  their  relations  to  one  another  and  to  himself  were 
judged  according  to  the  feudal  law. 

The  customary  feudal  services  due  from  the  vassal  to  his 
lord  included  certain  payments  of  money  which  must  be  care- 
fully distinguished  from  payments  of  an  economic  charac- 
ter.10 When  the  vassal  as  heir  succeeded  to  the  fief  he 
paid  a  "  relief,"  a  relevium,  a  taking  up  again  of  the  fief, 
which  meant  that  in  theory  the  ownership  of  the  lord  entered 
between  the  occupation  of  his  vassal  and  that  of  the  heir. 
In  practice  in  the  case  of  tenants  in  chief  the  ownership  of 
the  king  did  enter  and  actual  possession,  called  "  primer 
seisin,"  or  first  possession,  was  taken  of  the  fief  by  the 
officers  of  the  king.  It  was  only  on  payment  of  the  relief 
that  the  heir  obtained  recognition  and  the  right  to  perform 
homage,  swear  fealty,  and  receive  the  formal  investiture 
which  gave  him  legal  possession  of  his  fief.  That  is,  the 
relief  was  a  payment  intended  to  keep  alive  in  every  genera- 
tion the  fact  that  the  holder  of  the  land  was  a  tenant  merely 

Besides  the  relief,  payments  which  were  called  "  aids," 
auccilia,  were  recognized  feudal  obligations.  These  were  pay- 
ments by  which  the  vassal  came  to  the  aid  of  his  lord  on 
certain  fixed  occasions  when  he  had  to  meet  extraordinary 
expenses.  In  England  these  were  when  his  eldest  son  was 
made  a  knight,  when  one  daughter,  usually  the  eldest,  was 
married  the  first  time,  and  when  he  had  to  ransom  himself 

»Penn.,  IV.,  3,  32-34. 
"Stubbs,  S.  C,  193-194. 


66  THE  NORMAN  CONQUEST 

as  a  prisoner  of  war.  Sometimes  also  on  other  special  occa- 
sions, as  when  the  lord  had  to  redeem  his  lands  from  heavy 
mortgages  held  by  Jews,  an  extra  aid  might  be  asked  for, 
to  which  it  was  expected  that  the  vassal  would  consent,  but 
these  special  aids  were  always  voluntary,  gratis  they  were 
called.  They  could  not  be  collected  without  the  previous 
consent  of  those  who  had  to  pay  them.  These  payments  are 
all  to  be  interpreted  according  to  the  feudal  understanding 
of  the  relation  between  lord  and  vassal.  They  cannot  be 
regarded  as  either  economic  returns,  or  as  taxation. 

On  similar  principles  rested  other  rights  of  the  lord  which 
were  even  more  valuable  financially  when  they  accrued.  The 
right  of  wardship  gave  him  possession  of  the  fief,  so  long 
as  the  heir  was  a  minor,  on  the  theory  that  a  minor  heir 
could  not  perform  the  services  due.  The  law  required  him 
to  support  in  their  proper  station  and  educate  his  vassal's 
children,  and  his  rights  did  not  interfere  with  the  dower 
rights  of  the  widow,  but  apart  from  these  obligations  the 
income  of  the  fief  was  his  without  accountability  so  long 
as  the  minority  lasted.  If  the  fief  fell  to  an  heiress  the 
feudal  law  gave  the  lord  the  right  of  marriage,  that  is  the 
right  to  select  her  husband  on  the  theory  that  the  lord  must 
be  sure  that  he  would  be  able  and  willing  to  perform  the 
services  due.  The  right  was  in  reality  a  financial  one,  the 
selection  being  sold  to  an  interested  bidder  or  to  the  heiress 
herself  or  her  family.  If  the  vassal's  line  became  extinct, 
the  fief  reverted  to  the  ownership  of  the  lord  by  "  escheat," 
and  also  if  he  forfeited  his  holdings  by  felony,  the  king  also 
having  in  this  case  prior  right  to  possession  for  a  year  and 
a  day,  if  the  felon  was  a  rear  vassal. 

The  change  produced  by  the  introduction  of  these  political 
tenures  was  probably  the  most  immediately  extensive  and 
the  one  most  felt  by  the  people  of  England  of  any  of  those 
which  followed  the  Conquest,  because  it  was  connected  with 
the  transfer  of  lands  from  Saxons  to  Normans.  The  change 
was  not  made  by  legislation  nor  announced  in  any  public 


LAND  TENURE  67 

proclamation,  nor  was  it  suddenly  made.  It  was  made  step 
by  step  as  William  bestowed  the  confiscated  estates  on  his 
followers  or,  as  was  done  in  some  few  cases,  returned  them 
to  their  owners.11  Probably  also  it  was  not  a  change  made 
deliberately  or  of  conscious  purpose.  The  tenure  by  which 
lands  were  held  of  the  king  was  made  feudal  and  the  basis 
of  the  political  organization  because  that  was  the  only  natu- 
ral thing  to  do ;  it  was  the  only  arrangement  which  the  Nor- 
mans understood. 

For  this  reason  also  it  was  made  practically  universal. 
It  was  applied  to  the  lands  of  the  church,  for  instance:  the 
churches  and  monasteries  very  generally  retained  the  lands 
which  had  been  given  them  in  Saxon  times,  but  now  they  were 
feudalized.  Bishops  and  abbots  became  vassals  of  the  king 
and  definite  portions  of  their  endowment  lands  were  formed 
into  "  baronies  "  which  they  held  by  the  same  kind  of  serv- 
ices as  were  due  from  lay  barons.  In  no  case,  however,  did 
the  barony  include  all  the  lands  of  the  church.  A  portion 
was  set  aside  to  support  the  church  and  the  monks.  These 
latter  lands  were  usually  held  by  a  tenure  called  frank 
almoign,  or  free  alms,  that  is,  without  service  returns  or  by 
religious  services  only,  such  as  prayers  for  the  soul  of  the 
donor.  Every  church  held  also  what  were  called  "  lay 
fees,"  that  is  land  held  of  some  donor  by  the  ordinary  serv- 
ices as  a  layman  would  hold  them. 

It  has  been  often  said  that  William  in  introducing  the 
feudal  system  into  Engand  made  important  modifications 
in  its  character  to  secure  the  power  of  the  crown.  But  proof 
of  such  an  intention  is  lacking  and  a  conscious  intention  of 
the  kind  is  hardly  reasonable  to  expect.  The  holdings  of 
most  of  the  great  barons  were  scattered  through  several  or 
many  counties  but  that  was  a  natural  result  of  the  gradual 
occupation  of  the  kingdom,  and  of  the  fact  that  the  estates 
of  their  Saxon  predecessors,  which  were  often  given  as  a 
whole  to  some  Norman,  were  also  scattered  in  the  same  way. 

11  Cheyney,  Readings,  103-104. 


68  THE  NORMAN  CONQUEST 

The  same  thing  was  true  of  feudal  holdings  on  the  Continent 
except  where  the  great  baron  represented  the  successor  of  a 
Frankish  count  or  duke  who  had  been  governor  of  a  dis- 
trict. In  certain  cases,  Cheshire,  Cornwall,  Shropshire,  and 
Kent  at  least,  William  showed  that  he  was  not  afraid  of 
the  accumulation  of  something  very  near  a  local  principality 
in  the  hands  of  one  man.  William  did  require  an  oath  of 
fealty  of  all  land  holders  whether  they  were  his  immediate 
tenants  or  not,  but  this  custom  was  no  innovation  in  Norman 
feudalism  and  had  been  inherited  from  the  Frankish  mon- 
archy, nor  was  it  in  practice  of  value  to  the  king. 

It    will    readily   be    seen    that    feudalism    as    a    system    of 
political  organization  for  the  state  involved  three  principles 
which  were  of  great  influence  upon  the  constitutional  devel- 
opment of  the  future.     The  first  of  these  is  that  the  obli- 
gations    of    public     service    which    the    citizen    ordinarily 
owes     to     the     state     ceased     to     be     due     to     the     state 
as  such  and  were  considered  private  obligations  which  one 
man  owed  to  another  as  a  return  for  land  which  he  held  of 
him.     The  simplest  illustration  of  this  is  the  feudal  military 
service,  but  we  are  soon  to  notice  its  application  to  the  na- 
tional  assembly.     The   second   principle   follows    from  this. 
It  is  that  the  relations  between  the  king  and  his  subjects,  in 
many  exceedingly  important  features   of  government,  were 
regulated  by  a  definite  contract  which  neither  party  could 
vary  without  the  consent  of  the  other.     The  definite  under- 
standing which  the  feudal  custom  had  about  the  services  on 
both  sides,  of  the  king  to  the  baron  and  of  the  baron  to 
the  king,  could  not  be   changed   at  will.     These   two   prin- 
ciples were  of  decisive  influence  on  the  development  of  the 
constitution.     The  third  is  that  the  actual  occupier  of  the 
land  was  tenant  merely  and  not  owner.     This  principle  had 
an  equally  decisive  influence  on  the  development  of  our  land 
and  property  law  whose  effects  remain  to  the  present  day 
as  will  be  indicated  later. 

The  Anglo-Norman  central  council  or  curia  regis  was  an 


THE  CENTRAL  COUNCIL  69 

institution  of  quite  a  different  type  from  the  sheriffdom,  and 
yet  it  shows  even  more  clearly  perhaps  the  undifferentiated 
character  of  the  government.  In  form  and  appearance,  and 
in  the  main  in  the  functions  it  performed,  it  seemed,  as 
clearly  as  in  the  case  of  the  sheriff,  identical  with  the  Saxon 
national  assembly  which  had  preceded  it.  It  was  like  that  an 
assembly  of  the  great  men  of  church  and  state,  of  the  house- 
hold officers  of  the  king,  and  in  exceptional  cases  of  any 
whom  he  might  wish  to  summon.  But  in  reality  the  Norman 
Conquest  had  introduced  into  the  assembly  a  new  controlling 
principle  of  composition  which  makes  a  decided  institutional 
change  and  compels  us  to  find  its  true  ancestor  in  the  Frank- 
ish,  not  in  the  Saxon  state.  That  new  principle  of  composi- 
tion was  feudal.  The  great  council  was  feudalized,  not  in 
function  but  in  structure.  The  great  men  of  church  and 
state  in  attending  it  performed  a  duty  which  they  owed  no 
longer  to  the  state,  nor  to  the  king  as  sovereign,  but  to  the 
king  personally  as  the  lord  of  vassals,  just  as  their  own  vas- 
sals attended  their  exactly  similar  councils.  The  rare  excep- 
tions which  we  find  in  individual  cases  to  this  feudal  principle 
in  the  membership  of  a  given  assembly  were  survivals  not 
of  an  earlier  characteristic  of  the  assembly,  but  of  an  earlier 
function  of  the  king,  and  a  sign  of  his  prerogative  power 
in  the  government  of  the  state.  The  same  institution  in 
both  the  essential  and  the  exceptional  characteristics,  with 
of  course  occasional  local  peculiarities,  is  to  be  found  in  all 
the  contemporary  feudal  states  which  formed  within  the 
Prankish  empire,  and  to  deny  the  feudal  character  of  the 
Anglo-Norman  great  council  because  of  its  similarity  in 
superficial  appearance  and  function  to  the  Saxon  assembly 
would  be  to  deny  the  feudal  character  of  every  institution 
of  the  kind  in  Europe  and  the  Latin  Orient. 

Before  trying  to  get  an  idea  of  the  part  which  this  in- 
stitution played  in  government,  it  is  necessary  to  under- 
stand as  clearly  as  possible  the  difficult  fact  that,  to  the 
men  who  were  acting  in  it,  its  two  forms,  the  great  and  the 


70  THE  NORMAN  CONQUEST 

small  councils,  were  identical  in  everything  except  size.  The 
small  council  was  the  active  body  in  the  intervals  between 
the  meetings  of  the  great  council,  but  it  was  not  a  committee 
which  the  larger  body  had  clothed  with  certain  of  its  func- 
tions to  be  performed  under  responsibility  to  itself.  It  is 
very  natural  for  us  to  think  of  it  as  a  committee,  but  no  one 
at  the  time  had  such  an  idea  of  it.  It  was  the  larger  body 
shrunk  to  the  smaller  dimensions  determined  by  those  who 
were  immediately  connected  with  the  government  or  attend- 
ant, perhaps  accidentally  even,  on  the  king.  But  size  had 
nothing  to  do  with  function,  and  in  the  business  of  the  state 
the  small  council  could  do  all  that  the  great  council  could 
do.  In  fact  the  steady  and  jDermanent  institution  by  which 
day  by  day  the  business  of  the  Anglo-Norman  state  was 
operated  and  supervised  was  the  small  council.  The  unity 
of  this  institution  in  its  two  forms  is  somewhat  difficult  for 
our  more  analytical  minds  to  grasp  clearly,  and  yet  the 
fact  is  exceptionally  important  because  this  undifferentiated 
institution,  in  which  most  functions  of  that  primitive  govern- 
ment were  centered,  became  in  time  through  each  of  its  forms 
the  mother  of  a  numerous  progeny  of  institutions  existing 
in  the  modern  state.  The  fact  that  all  functions  and  powers 
of  the  central  body  belonged  alike  to  each  of  the  forms  in 
which  it  acted  reveals  itself  also  in  the  later  history  in  a 
tangle  of  crisscross  institutions  and  operations  which  is  most 
puzzling  and  misleading  unless  the  original  identity  is  clearly 
held  in  mind. 

As  the  chief  machinery  of  actual  government  and  a  part 
of  the  constitution,  the  essential  fact  regarding  the  council 
is  that  it  exercised  or  supervised  the  exercise  of  all  the  func- 
tions of  the  state  without  making  any  institutional  distinc- 
tion between  them.  It  was  the  supreme  legislature  on  those 
infrequent  occasions  when  the  slight  business  of  the  com- 
munity demanded  new  legislation  or  the  modification  of  ex- 
isting law.  It  was  the  highest  court  of  law  in  which  the 
most  important  cases,  or  the  cases  of  the  most  important 


FEW  CHANGES  IN  LOCAL  LAW  71 

persons,  were  tried  and  decided,  it  might  be  in  the  same  ses- 
sion and  by  the  same  assembly  which  perhaps  immediately 
before  had  changed  the  law  of  the  land.  It  was  in  supreme 
control  of  the  executive  and  administrative  activities  of  the 
state.  To  it  all  executive  and  administrative  officers,  high 
or  low,  were  responsible  and,  when  we  attempt  to  collect 
instances  of  the  legislative  action  of  the  Council  in  this  early 
period,  we  find  that  a  large  proportion  of  them  were  in 
reality  in  the  form  of  administrative  orders  or  changes  made 
in  administrative  practices. 

In  local  institutions  and  local  law  the  changes  which  were 
made  by  the  Conquest  were  comparatively  slight.  Shire  and 
hundred  remained  territorially  what  they  had  been.  In  func- 
tion, competence,  and  procedure,  shire  court  and  hundred 
court  seem  not  to  have  been  affected  by  any  change,  except 
such  change  in  competence  as  may  have  been  involved  in  the 
withdrawal  of  ecclesiastical  cases.12  Procedure  in  the  local 
courts  of  Normandy,  in  such  details  as  we  know,  was  almost 
exactly  identical  with  that  of  Saxon  England  and  the  Nor- 
mans felt  no  need  of  change.  They  had  in  use,  however, 
particularly  in  cases  affecting  land  or  in  accusations  of 
felony,  a  method  of  proof  not  used  by  the  Saxons,  proof  by 
battle  or  the  judicial  duel.  This  they  retained,  but  Eng- 
lishmen were  not  obliged  to  use  it  among  themselves  nor  in 
all  cases  with  Normans.13  In  the  trial  of  a  case  the  duel 
was  treated  like  an  ordeal  but  it  was  not  technically  an 
ordeal.  An  important  practical  innovation,  the  use  of  the 
county  court  to  hold  a  local  session  of  the  curia  regis,  will 
be  discussed  in  the  next  chapter. 

Early  in  the  Norman  period,  probably  in  the  reign  of 
William  I,  the  Anglo-Saxon  tithing,  influenced  apparently 
by  the  system  of  personal  sureties,  was  developed  into  the 
frankpledge  system,  which  held  a  great  place  in  English  local 
government  for  more  than  three  hundred  years.     Over  nearly 

12  Stubbs,  S.  C,  122. 
isCheyney,  Readings,  105. 


72  THE  NORMAN  CONQUEST 


the  whole,  but  not  quite  all,  of  England,  all  men,  unless  they 
had  property  of  their  own,  especially  land,  which  would 
serve  as  security  for  them,  or  were  vouched  for  by  some  re- 
sponsible individual  with  whom  they  were  specially  connected, 
as  in  his  household  for  instance,  must  be  in  a  frankpledge 
and  a  tithing,  ten  or  twelve  persons  formally  grouped  to- 
gether under  a  tithing  man.  It  was  the  duty  of  the  town- 
ship to  see  that  all  its  male  inhabitants  above  the  age  of 
twelve  were  in  a  tithing.  If  the  accused  before  the  court 
was  found  not  to  be  in  a  tithing,  the  township  was  amerced. 
If  he  was  in  a  tithing  but  not  arrested  and  produced  by  the 
tithing,  the  latter  was  amerced.  That  is  the  system  was  one 
of  collective  responsibility  for  the  arrest  of  persons  sus- 
pected of  crime,  arrest  being  a  very  difficult  thing  to  secure 
in  those  times.  The  earliest  court  rolls  show  the  constant 
fining  of  tithing  and  township  for  failure  in  these  respects, 
in  all  probability  from  sheer  inability.  The  tithing  system 
firmly  enforced  was  probably  as  good  a  method  of  meeting 
the  difficulty  as  could  be  then  devised. 

At  some  uncertain  date  the  responsibility  was  placed  upon 
the  sheriff  of  seeing  that  the  men  in  the  county  were  properly 
enrolled  and  the  tithings  in  working  order.  This  he  did  in 
the  practice  called  the  sheriff's  turn  by  going  in  circuit  to 
each  hundred  and  holding  a  "  view  of  the  frankpledge  "  in 
an  especially  full  meeting  of  the  hundred  court  twice  each 
year.  In  the  transfer  of  so  much  that  concerned  govern- 
ment into  private  possession  which  characterized  the  feudal 
age,  even  this  function,  so  essential  for  the  maintenance  of 
local  police  and  good  order,  was  given  over  in  a  great  num- 
ber of  cases  to  the  lord  who  had  possession  of  the  hundred 
court  from  which  the  sheriff  was  in  many  cases  shut  out. 

That  system  of  private  jurisdiction,  partly  economic, 
partly  local  police,  which  had  developed  somewhat  generally 
before  the  Conquest,  received  no  check  from  the  Normans, 
except  as  the  governmental  supervision  of  local  police  be- 
came rather  more  strict  through  the  growth  of  the  frank- 


PRIVATE  COURTS  73 

pledge  system  and  more  slowly  of  a  new  criminal  justice. 
The  Normans  were  familiar  at  home  with  private  courts  of  a 
similar  character  and  would  see  no  reason  to  interfere  with 
them  in  England.  Indeed  the  kings  confirmed  liberally  the 
Saxon  grants  of  hundred  courts  to  private  lords,  and  made 
new  ones  of  their  own,  and  it  was  not  long  before  they  in- 
cluded freely,  among  the  rights  granted,  the  view  of  the 
frankpledge  itself.  It  should  be  noticed,  however,  that  the 
centralization  of  the  Norman  state  was  so  great  that  the 
chief  significance  of  these  grants,  both  to  grantors  and 
grantees,  was  not  political  independence  but  financial  income 
from  fees  and  fines.  No  appreciable  political  independence 
went  with  them,  and  it  is  more  than  two  hundred  years  after 
the  landing  of  the  Normans  before  the  central  government 
took  seriously  in  hand  the  recovery  of  the  local  courts. 

With  the  introduction  of  political  feudalism,  the  Normans 
also  introduced  a  new  kind  of  private  court,  the  feudal  court 
proper,14  or  the  baronial  court  as  it  is  better  called  for  dis- 
tinction's sake:  the  court  of  the  lord  for  his  vassals  and 
freehold  tenants,  with  jurisdiction  over  their  holdings,  and 
their  relations  to  one  another,  and  over  questions  arising 
from  the  service  due  their  lord.  In  organization  and  pro- 
cedure it  was  like  the  other  courts  of  the  time,  an  assembly 
court  using  the  same  methods  of  trial  and  proof  as  the  hun- 
dred court,  and  presided  over  by  the  lord  or  his  represen- 
tative not  as  judge  but  as  moderator.  The  law  which  it  en- 
forced, however,  was  not  the  law  of  the  hundred  as  in  the 
franchisal  court  of  the  "  liberty,"  nor  the  customary  law  of 
the  domanial  court,  but  the  feudal  law  proper,  regulating  the 
relations  of  lords  and  vassals  with  one  another. 

There  were  thus  in  Norman  England  three  kinds  of  private 
courts  which  we  may  in  theory  distinguish  sharply  from  one 
another  as  we  know  that  they  did  in  practice:  The  baronial, 
whose  field  was  the  relations  of  lords  and  their  free  tenants 
in  political  feudalism;  the  hundred  court  in  private  hands, 
"Penn.,  IV.  3,  32-34,  Nos.  1  and  4. 


74  THE  NORMAN  CONQUEST 

which  we  may  best  call  a  franchisal  court,  because  it  was 
established  by  the  grant  of  a  "  franchise  "  or  freedom  from 
the  local  organization  and  its  officers,  also  called  commonly 
in  England  a  "  liberty  " ;  and  the  domanial,  or  manor  court 
proper,  whose  field  was  the  manor  and  its  tenants  and  their 
relations  with  one  another  and  their  lord  in  the  sphere  of 
economic  feudalism.  In  practice  for  convenience  and  econ- 
omy these  courts,  especially  the  two  last,  were  often  used  to 
do  the  business  one  of  another,  but  not  in  such  a  way  as 
to  confuse  their  jurisdiction  proper  or  to  destroy  the  dis- 
tinction between  them  or  between  the  kinds  of  law  which  they 
interpreted.  The  baronial  court,  sometimes  called  an 
"  honor "  court,  as  the  barony  was  sometimes  called  an 
"  honor,"  was  very  rarely  used  for  any  business  not  its  own, 
though  it  seems  to  have  been  occasionally  used  as  a  court 
of  appeals  for  questions  from  the  domanial  courts  of  the 
same  lord. 

The  population  of  England  remained  divided  into  the 
same  classes  and  ranks  as  in  Saxon  England.  The  new  no- 
bility was  more  powerful,  more  sharply  defined,  and  to  enter 
into  it  was  apparently  more  difficult  for  men  of  non-noble 
origin.  The  feudal  tenure  proper,  political  feudal,  was  al- 
ways considered  a  noble  tenure,  and  with  the  single  excep- 
tion of  the  earl,  there  were  no  technical  distinctions  of  rank 
among  the  feudal  tenants.  As  in  Saxon  times  the  common 
freeman  holding  his  land  by  a  non-feudal,  oftentimes  also 
by  a  non-labor,  tenure,  called  commonly  "  socage  "  tenure, 
stood  between  the  noble  and  the  serf,  and  the  unfree  in  va- 
rious grades  constituted  the  lowest  stratum.  It  was  im- 
possible of  course  that  the  community  should  go  through 
such  a  revolution  as  the  Norman  Conquest  without  great 
depression  of  individuals,  and  it  is  probable  that  the  loss 
to  Saxons  generally  was  greater  than  the  evidence  reveals 
to  us.  Few  Saxon  nobles  passed  into  the  Norman  nobility; 
the  common  freeman  lost  distinctly  in  relative  influence  and 
weight  in  local  and  public  affairs  and  it  was  long  before  he 


MONARCH  AND  BARON  75 

recovered  his  former  place,  and  many  individuals  of  the  class 
undoubtedly  were  depressed  into  the  class  below  them.  If 
the  serf  lost  relatively  less  than  the  other  Saxon  classes,  he 
gained  nothing  from  the  change,  unless  possibly  those  of  the 
very  lowest  class.  The  improvement  of  his  position  awaited 
general  economic  improvement,  and  the  common  freeman  be- 
gan to  recover  his  place  earlier,  with  the  development  of 
judicial  reforms  in  the  twelfth  century. 

Monarchy  and  baronage  stood  over  against  one  another 
after  the  Conquest  as  the  two  most  powerful  forces  of  the 
time,  as  indeed  the  only  forces  as  yet  affecting  public  life 
and  government,  if  we  include  the  clergy  in  the  baronage  as 
we  must  from  the  point  of  view  of  the  government.  The 
middle  and  lower  classes  had  not  yet  acquired  a  standing  in 
the  community  which  gave  them  an  influence  on  public  affairs 
nor  was  there  any  institutional  machinery  through  which 
they  could  make  themselves  heard.  The  king  was  the  more 
powerful  of  the  two  great  forces,  but  the  baronage  pos- 
sessed the  principle,  in  the  feudal  contract  and  the  resulting 
limitation  of  the  king's  rights,  which  was  destined  to  be  the 
foundation  of  the  limited  monarchy.  It  was  indeed  the  great 
preponderance  of  the  royal  power  which  led  to  its  own  de- 
struction. 

As  yet  neither  king  nor  baronage  had  any  wide  outlook 
on  the  future  nor  any  clear  conception  of  constitutional 
progress  or  specific  rights.  The  king  had  more  regard  for 
the  present  exercise  of  power  than  for  laying  the  foundations 
of  its  future  permanence.  The  individual  haron  was  not 
prone  to  regard  his  share  in  public  affairs  as  privilege  or 
opportunity  for  the  exercise  of  influence  on  the  conduct  of 
government,  but  rather  as  a  burden.  In  such  a  community 
ideals  of  public  service  were  not  high,  and  the  individual 
would  naturally  escape  gladly  with  as  little  share  in  public 
affairs  as  possible.  Nearly  everything  was  left  to  the  deter- 
mination of  the  king,  though  with  no  conscious  intention  and 
no  institutional* result. 


76  THE  NORMAN  CONQUEST 

Bibliographical  Note. —  G.  B.  Adams,  Local  King's  Courts 
in  the  Reign  of  William  I,  Yale  Law  Journal,  xxiii,  90,  1914; 
Private  Jurisdiction  in  England,  A.  H.  R.,  xxiii,  596,  1918.  C. 
M.  Andrews,  The  Old  English  Manor,  1892.  H.  Boehmer, 
Kirche  und  Staat  in  England  und  in  der  Normandie  im  XI  und 
XII  Jahrhundert,  1899.  C.  H.  Haskins,  Norman  Institutions, 
1918.  F.  W.  Maitland.  Domesday  Book  and  Beyond,  1897.  W. 
A.  Morris,  The  Frankpledge  System,  1910.  J.  H.  Round,  Feudal 
England,  1895.  F.  M.  Stenton,  William  the  Conqueror,  1908. 
Sir  P.  Vinogradoff,  Villainage  in  England,  1892;  English  Society 
in  the  Eleventh  Century,  1908;  The  Growth  of  the  Manor,  1911. 


CHAPTER  III 

THE  NORMAN  PERIOD 

The    changes    introduced    by   the   Norman    Conquest    are 
really  less  important  when  looked  at  from  the  side  of  insti- 
tutions strictly  speaking  than  when  considered  as  changes 
in  emphasis  and  interpretation.     As  to  institutions  the  only 
great  change  was  what  necessarily  followed  the  introduction 
of  feudalism,  the  change  in  the  structure  of  the  great  coun- 
cil and  the  prevalence  of  a  new  land  law,  the  law  of  feudal 
tenures  proper.     But  changes  in  emphasis   and  interpreta- 
tion were  far  reaching  and  in  one  matter  at  least,  in  their 
influence  on  the  position  of  the  king  in  the  constitution,  of 
immense  significance.     Until  we  reach  the  rise  of  Parliament 
in  the  middle  of  the  thirteenth  century,  the  one  great  topic 
of  constitutional  interest  is  the  power  of  the  king  and  its 
probable  future.     The  judicial  reforms  of  the  last  half  of 
the  twelfth  century  were  of  great  and  lasting  importance,  but 
their  final  importance  was  to  be  institutional,  that  is  con- 
cerned with  the  details   of  governmental  operation,  rather 
than   constitutional,  that  is  affecting  the  character  of   the 
whole  governmental  system.     At  first,  however,  their  effect 
was  quite  as  much  constitutional  as  institutional,  and  this 
significance  they  obtained  through  their  direct  bearing  on 
the  royal  power.      This  is  the  one  fact,  the  royal  power  and 
its  future,  which  is  fundamental  in  the  history  of  the  first 
two    hundred   years    after    the    Conquest.      The   problem    of 
the  time  was,  if  we  may  phrase  it  as  a  problem :  will  the  king 
be   able   to   translate   his   power,  which   as   yet   is   practical 
rather   than    institutional,    a    power   derived    from   emphasis 
and  interpretation   rather  than  from  law,   into  a   constitu- 
tional power,  founded  strongly  in  law  and  institutions ;  or 

l77 


.78  THE  NORMAN  PERIOD 

will  it  be  found  possible  to  make  the  immature  and  rudimen- 
tary checks  upon  arbitrary  power  which  exist  in  feudal  law 
the  ruling  principles  of  the  constitution. 

One  element  of  the  royal  power,  the  royal  prerogative, 
which  has  been  of  great  importance  in  all  constitutional  his- 
tory down  to  the  present  time,  was  already  semi-institutional 
in  character  at  least,  that  is,  it  was  recognized  by  the  courts 
as  clothing  the  king  with  extraordinary  power,  even  in  some 
cases  against  themselves.  The  king's  prerogative  right  was 
so  much  discussed  when  men  began  to  theorize  about  their 
government,  and  emphasis  upon  various  phases  of  detail  was 
so  greatly  varied  from  time  to  time,  that  the  task  of  de- 
ciding what  it  was  in  the  medieval  period  is  not  an  easy  one; 
and  it  is  perhaps  an  impossible  one,  for  the  idea  developed 
greatly  in  the  course  of  time.  It  is,  however,  exceedingly 
important  that,  if  possible,  an  understanding  of  its  funda- 
mental character  should  be  gained  at  the  beginning  of  a 
study  of  constitutional  history;  but  we  must  be  reminded 
again  that,  in  using  phrases  which  make  the  past  fact  clear 
to  us,  we  are  not  asserting  that  the  men  of  the  time  could 
have  used  the  same  phrases,  or  have  explained  the  fact  in  the 
same  way.  We  may  say  that  prerogative  was  the  power  of 
the  king  to  do  things  which  no  one  else  could  do,  and  his 
power  to  do  them  in  a  way  in  which  no  one  else  could  do 
them.  He  could  direct  a  jury  of  neighbors  to  determine  a 
fact,  but  no  one  else  could  do  this.  The  jury  was  preroga- 
tive procedure  and  it  was  the  king's  own.  Roughly  pre- 
rogative was  his  power  to  do  all  things  which  were  not  ex- 
pressly forbidden  him  by  the  law,  or  by  custom  equivalent 
to  law,  or  by  agreements  which  he  had  himself  made.  Prac- 
tically it  was  not  always  easy  to  hold  the  king  to  his  own 
agreements,  or  to  make  him  conform  in  every  case  to  the 
law.  Indeed  in  many  respects  he  was  distinctly  recognized 
as  being  above  the  law.  He  could  not  be  sued.  He  could 
protect  rights  of  others  which  the  common  law  would  not 
protect,  and  in  doing  this  he  gave  rise  to  the  whole  system 


CONFLICT  OF  LAW  AND  PREROGATIVE      79 

of  equity  law  and  courts.  No  valid  law  could  be  made  if 
he  did  not  consent  to  it.  He  could  set  aside  a  judicial  sen- 
tence by  granting  a  pardon.  In  times  somewhat  later  he 
could  set  aside  a  statute,  or  a  part  of  a  statute,  or  a  special 
application  of  a  statute,  to  which  he  had  consented.  He 
was  responsible  for  his  acts  to  God  alone.  He  was  the  repre- 
sentative of  God  in  the  government  of  the  world  and  as  such 
clothed  with  extraordinary  powers,  as  well  as  held  to  the 
duty  of  securing  right  and  justice.  On  the  other  hand  there 
was  some  law,  especially  public  law  and  express  engage- 
ments of  his  own,  which  he  was  not  above,  and  the  conflict 
and  reconciliation  of  these  two  contradictory  ideas,  the  king 
is  above  the  law,  the  law  is  above  the  king,  the  conflict  of 
law  and  prerogative,  constitutes  a  large  part  of  English 
constitutional  history. 

There  can  be  no  question  about  the  first  tendencies  of  con- 
stitutional growth.  William  I  had  ruled  with  moderation 
and  had  never  shown  a  disposition  to  take  advantage  of  his 
position  to  push  his  right  to  extremes.  The  evidence  is  not 
so  clear  as  we  could  wish  but  it  is  sufficient  to  warrant  us 
in  saying  that  his  son  William  II  did  do  so.  The  few  specific 
instances  that  we  have,  and  the  abuses  which  are  indicated 
by  the  promises  of  his  brother  Henry's  coronation  charter, 
while  implying  that  his  acts  were  illegal,  show  somewhat  more 
clearly  that  he  had  pushed  the  rights  logically  involved  in 
the  position  of  the  feudal  suzerain  to  unusual  extremes  and 
in  some  cases  had  made  them  justify  demands  that  were 
new.  Both  ecclesiastical  and  lay  barons  suffered,  but  the 
exactions  from  the  church  fiefs  were  especially  regarded  as 
new.1  Apparently  William  I,  while  acting  upon  his  right  to 
control  a  fief  during  a  vacancy,  had  gone  no  farther  than 
to  take  the  lands  in  hand,  to  make  an  inventory  of  the  goods 
and  to  see  that  they  were  not  wasted,  leaving  the  income  to 
the  church.  His  son,  however,  exercised  his  right  with  strict 
logic,  and  retained  the  income  to  his  own  use  as  he  would  in 
iStubbs,  S.  C,  109;  A.  and  S.,  3. 


80  THE  NORMAN  PERIOD 

case  of  a  lay  wardship,  or  even  considered  the  fief  escheated 
and  granted  out  its  lands  without  reference  to  the  interests 
of  the  church.  In  the  case  of  lay  barons  he  was  not  satis- 
fied with  a  moderate  relief,  but  he  was  accused  at  least  of 
demanding  something  near  the  capital  value  of  the  fief.  The 
right  of  marriage  also  he  used  in  the  same  way  to  justify 
unusual  exactions  and  applied  it  to  the  widow  as  well  as  to 
the  heiress  of  a  deceased  baron. 

However  slight  the  evidence  may  be  as  to  specific  acts, 
there  can  be  no  doubt  but  that  in  general,  William  II,  ex-  „ 
ercised  a  power  in  England  which  was  so  arbitrary  and  un- 
limited as  to  te  near  at  any  rate  to  tyranny.  Twice  during 
his  reign  the  barons  tried  the  feudal  remedy  of  rebellion,  in 
the  first  instance  with  force  enough  to  make  the  attempt  for 
a  time  dangerous  to  the  king,  but  without  success.  William 
was  too  strong.  It  is  interesting  that  danger  brought  the 
king  to  some  repentance.  He  appealed  to  the  English  peo- 
ple and  made  written  promises  of  better  government,  which 
would  give  us  valuable  information,  if  we  had  them,  but  when 
the  danger  was  past  he  returned  to  his  earlier  methods  of 
rule.  In  Ranulf  Flambard,  whom  he  raised  from  obscurity 
to  the  bishopric  of  Durham,  the  richest  and  most  powerful 
in  the  kingdom,  he  had  an  able  and  vigorous  minister  who, 
we  are  led  to  suppose,  was  not  merely  ready  and  able  to  do 
the  king's  will,  but  also  to  show  him  new  steps  to  take  in 
the  same  direction.  So  far  as  we  are  able  to  judge,  the 
demands  of  William  were  all  logically  involved  in  the  acknowl- 
edged rights  of  the  suzerain  and,  except  perhaps  for  the 
size  of  the  sums  exacted,  his  innovations  became  recognized 
rights  of  the  king  of  England  for  a  century  and  a  half  at 
least,  and  were  even  carried  farther  in  the  same  direction. 

The  sudden  death  of  William  II,  together  with  the  absence 
of  his  elder  brother,  Robert,  gave  the  barons  their  oppor- 
tunity. The  younger  brother,  Henry,  persuaded  the  barons 
to  support  him  as  king,  but  in  order  to  do  so  lie  was  obliged 
to  promise  that  he  would  abandon  the  arbitrary  acts  of  his  jj 


CORONATION  CHARTER  OF  HENRY  I         81 

brother  and  return  to  the  practices  of  their  father.  These 
promises  were  formulated  in  specific  form  in  a  charter,  or 
what  would  be  for  a  private  man  a  legally  binding  deed  or 
grant,  which  we  call  the  coronation  charter  of  Henry  I.2 
The  provisions  of  this  charter  were  based  clearly  on  the  prin- 
ciple that  the  things  which  William  II  had  been  doing  he 
had  no  right  to  do  and  that  therefore  they  were  unjust  and 
illegal.  In  the  first  paragraph  Henry  gives  as  the  reason 
for  his  promises  that  "  the  kingdom  had  been  oppressed  by 
unjust  exactions  "  and  he  promises  that  he  will  remove  "  all 
evil  customs  by  which  the  kingdom  of  England  was  unjustly 
oppressed."  That  is  the  king  definitely  acknowledges  that 
there  are  certain  things,  some  of  which  he  goes  on  to  name, 
which  the  king  cannot  legally  do.  Nearly  all  the  specific 
points  mentioned  in  the  charter  concern  the  feudal  relation 
between  the  king  and  his  barons.  The  charter  isr  in  the 
poin_ts_whjrh  ih  tnkos  np,  _gjT_pyfmplifirat.inn  of  the  funda- 
mentaj_j:ontract  relatinnship  nf  feudalism,  that_is_-£ejrvices 
definitely_defined  by  fnstnm  ux-cgLfcujm  for  a,  definite  piece  of 
land  receive^,  and  it  is  a.  sppn'al  contract  —  the  barons,  en- 
ga^e_^o_support_lheJdng  if  he  will  make  these  promises  — 
within  the  field  of  the  mure  genpral  feudal  contract. 

It  is  in  this  sense  that  it  has  its  significance  in  constitu- 
tional history.  The  specific  promises  of  the  charter  Henry 
himself  did  not  keep,  nor  did  later  kings,  but  the  idea  upon 
which  the  charter  rested  was  never  lost  sight  of.  We  may 
state  this  idea,  though  the  barons  of  1100  could  not  have 
done  so,  as  this :  that  there  are  certain  things  which  the  king 
cannot  legally  do,  certain  limitations  on  his  power  which 
he  is  bound  to  observe  and,  if  he  will  not,  the  barons  may 
rightfully  insist  that  he  shall.  Through  most  of  the  period 
of  the  strong  Norman  and  Angevin  monarchy  this  principle 
lay  dormant,  but.  when  the  time  came  that  another  tyran- 
nical king,  acting  illegally,  was  also  at  a  disadvantage,  the 
barons  turned  to  it  again,  now  even  more  clearly  held,  and 
2Stubbs,  S.  C.,  117-119;  A.  and  S.,  4-6. 


V 


82  THE  NORMAN  PERIOD 

it  was  upon  the  model  of  the  coronation  charter  of  Henry 
I,  that  Magna  Carta  was  drawn  up,  and  through  it  this 
principle  became  the  corner  stone  of  the  limited  monarchy. 

Not  long  after  the  date  of  the  charter,  Henry  had  to 
defend  his  throne  against  a  most  dangerous  combination  of 
English  and  Norman  barons,  who  feared  that  his  power 
would  become  too  great,  and  it  was  not  until  after  several 
years  that  the  struggle  was  finally  settled  in  Normandy  in 
favor  of  the  king.  Henry  reigned  for  nearly  thirty  years 
after  his  victory  and  during  the  whole  of  that  long  period 
his  authority  in  England  was  unquestioned.  It  was  a  period 
indeed  of  steady  and  sound  growth  of  the  royal  power,  not 
so  much  upon  the  practical  side,  where  it  had  little  need 
to  grow,  as  in  law  and  institutions.  Our  evidence  of  the 
changes  made  in  the  reign  of  Henry  is  only  scanty  and  frag- 
mentary, but  it  is  enough  to  convince  us  that  the  foundations 
were  then  laid  for  those  advances  in  the  reign  of  his  grand- 
son, Henry  II,  which  went  so  far  towards  establishing  the 
English  royal  absolutism  solidly  in  the  constitution. 

The  special  characteristic  of  this  constitutional  develop- 
ment of  royal  power  in  both  these  periods  of  its  growth  is 
that  it  was  a  development  of  law  and  of  judicial  institutions. 
Indeed  it  is  true  that  some  of  our  institutions  which  we 
especially  associate  with  the  protection  of  liberty  against  the 
executive  power,  like  the  jury,  were  in  their  origin  parts  of 
machinery  for  the  more  intense  centralization  of  government 
in  the  hands  of  the  king.  Of  what  was  actually  done  in 
the  reign  of  Henry  I,  we  have  only  incomplete  information, 
but  the  slight  glimpses  that  we  get  are  very  significant,  and 
the  evidence  of  peculiar  interest  in  law  is  clear.  In  fact 
there  is  hardly  to  be  found  in  the  whole  of  legal  history  a 
period  of  equal  length  which  has  left  us  as  convincing  evi- 
dence of  legal  interest  and  study  as  the  last  twenty-five 
years  of  this  reign.  There  remain  to  us  from  that  time 
seven,  perhaps  we  ought  to  say  eight,  compilations  more  or 
less  complete  of  English  law  then  current,  or  at  least  of  what 


LEGES  HENRICI  83 

the  writers  wished  to  have  pass  as  not  obsolete.  Possibly 
an  impulse  was  given  to  the  writing  of  these  books  by  the 
promise  in  the  coronation  charter  of  the  king  that  he  would 
restore  the  laga  Edwardi  regis  with  such  changes  as  had 
been  made  in  his  father's  time.  Probably  the  demand  was 
not  so  much  for  the  laws  of  Edward  or  for  any  particular 
set  of  laws  as  for  the  Anglo-Saxon  system  in  general,  now 
far  enough  in  the  past  to  be  idealized,  and  the  promise  was 
probably  less  impulse  to  a  beginning  of  interest  than  itself 
evidence  that  the  interest  had  already  begun.  At  any  rate 
it  is  clear  that  the  writers  were  trying  among  themselves 
to  do  one  or  more  of  three  things,  to  show  what  the  Anglo- 
Saxon  laws  were,  to  give  the  results  of  the  legislation  of 
William  I,  or  to  depict  the  mixture  of  Saxon  and  Norman 
law  which  was  actually  in  use  in  the  contemporary  courts. 
The  most  interesting  and  valuable  of  these  books  is  one 
which  bears  the  title  Leges  Henrici,  which  purports  to  give 
the  law  which  the  courts  of  the  time  applied,  and  apparently 
it  does  do  so.  It  was  written  in  1116  or  soon  after,  as  a 
private,  not  an  official  work,  though  its  author  was  prob- 
ably one  of  the  royal  justices.3  Accepting  the  accuracy  of 
its  picture  of  contemporary  usage,  the  specially  significant 
fact  is  that  it  shows  two  distinct  systems  of  law,  the  Saxon 
and  the  Norman  feudal,  operating  side  by  side  in  the  courts 
with  no  sign  as  yet  of  any  melting  of  the  two  together  into 
one  organic  whole.  That  nninn  was  to  take  place  shortly 
and  to  give  rise  to  our  common  law  as  that  is  depicted 
towards  the  end  ot  the  century  in  Glanvill,  the  first  great 
text  book  of  the  common  law,  but  as  yet  the  two  systems  of 
law  stand  side  by  side  as  independent,  though  both  enforced 
in  the  same  courts,  as  they  could  easily  be.  We  cannot 
be  sure  that  some  of  the  Saxon  law  written  in  the  Leges  was 
not  already  obsolete  but  much  of  it  we  know  was  not,  and 
it  is  certain  that  the  reference  to  the  Laga  Edwardi  in  the 
charter  of  Henry  I,  though  it  may  then  have  had  no  very 
»Stubbs,  8.  C,  122-126. 


84  THE  NORMAN  PERIOD 

solid  foundation  in  actual  law,  served  to  keep  alive  an  ideal 
of  government  according  to  law  which  was  at  a  later  time  to 
reinforce  the  more  positive  forces  which  led  to  the  beginning 
of  the  limited  monarchy. 

In  one  large  field  of  law,  criminal  law,  we  can  see  a  little 
more  clearly  that  the  old  Saxon  was  already  beginning  to 
fall  into  the  background  and  disappear  before  the  Norman 
and  the  change  seems  to  have  been  closely  connected  with  that 
increase  of  the  king's  power  which  resulted  from  the  Con- 
quest. In  the  Leges  Henrici  the  old  Saxon  system  of  bots 
and  wites  still  appears  in  full  force.  It  probably  was  in 
force  as  of  old  in  the  local  courts,  for  the  Normans  at  home 
had  practically  the  same  system  and  there  would  be  no  rea- 
son for  a  change.  The  new  system  grows  up  beside  the  old 
and  in  the  course  of  the  century  crowds__it.  out.  The  first 
stage  in  the  new  growth  seems  to  have  been  the  development, 
or  simply  the  extension  of  two  older  ideas,  the  idea  of  the 
king's  pleas,  or  cases  reserved  especially  to  ihe-king— and  his 
courts  and  not  included  in  the  sheriff's  normal  jurisdiction, 
and  the  idea  of  the  king's  peace  as  described  in  Chapter  I. 
In  the  Leges  Henrici,  it  is  the  first  of  these  ideas  which 
shows  especial  extension.  The  short  Saxon  list  of  pleas  re- 
served to  the  king,  given  above,  had  now  become  a  much 
longer  and  more  miscellaneous  list,  showing  the  growth  of 
the  idea  that  a  crime  committed  is  an  offence  against  the 
king.4  Dislo3'alty,  murder,  robbery,  arson,  contempt  of 
royal  writs,  false  coining,  and  crimes  of  violence  are  named. 
Breach  of  the  king's  peace  stands  in  tins  list  as  one  of 
these  offences  and  the  early  development  of  this  idea 
does  not  show  itself  so  much  in  the  specification  of  the  crime 
which  is  made  in  the  accusation  as  it  does  in  the  character 
of  the  punishment.  That  is,  it  is  somewhat  later  in  the 
century  apparently  that  the  practice  becomes  common  of 
transforming  any  crime  into  a  plea  of  the  crown  by  alleg- 
ing that  it  was  a  breach  of  the  king's  peace.  But  under 
*  Stubbs,  S.  C.t  125. 


GROWTH  IN  NORMAN  INSTITUTIONS        85 

Henry  I,  the  idea  is  clearly  held  that  the  offender  who  is 
guilty  of  a  grave  crime  is  at  the  king's  mercy,  in  misericordia 
regis,  that  is  life  and  property  are  forfeit;  the  king  may 
take  more  or  less  as  he  sees  fit :  life  or  a  limb,  all  the  prop- 
erty or  a  heavy  fine.  In  the  Leges  Henrici  the  list  of  pleas 
which  put  a  man  at  the  king's  mercy  is  practically  the  same 
as  the  list  of  pleas  of  the  crown.  The  change  is  an  extension 
of  the  idea  of  royal,  or  national,  justice  at  the  expense  of 
locals  both  of  the  local  courts  and  of  their  system  of  bots 
and  zcites. 

In  another  feature  of  the  criminal  law  of  the  time  the 
same  effect  is  shown,  the  increased  strength  of  the  Norman 
central  government  as  compared  with  the  local.  It  illus- 
trates also  the  difficulty  of  arresting  criminals  in  those  times 
and  the  plan  of  collective  responsibility.  If  a  man  was  found 
killed,  the  hundred  in  which  he  was  found  was  held  either  to 
produce  the  slayer  or  to  prove  by  a  not  easy  process  called 
"  presentment  of  Englishry  "  that  the  slain  man  was  an  Eng- 
lishman. If  it  could  not  do  one  of  these  two  things,  it  must 
pay  a  heavy  fine,  called  murdrum. 

The  royal  power  was  in  the  end,  however,  to  find  far  less 
extension  and  support  in  the  development  of  criminal  than 
of  civil  justice.  Of  such  a  development  in  the  reign  of  Henry 
I  we  get  only  slight  glimpses.  They  are  enough  to  enable 
us  to  say  that  all  the  great  advances  in  the  principles,  in- 
stitutions and  organization  of  civil  justice,  which  charac- 
terize the  reign  of  Henry  II,  had  their  beginning  in  the  time 
of  his  grandfather.  We  must  reserve,  however,  the  treat- 
ment of  the  full  reforms  for  the  later  period,  and  limit  our- 
selves here,  as  our  lack  of  knowledge  limits  us,  to  the  first 
indications  of  growth  in  the  institutions  that  were  brought 
into  England  by  the  Normans. 

Three  institutions  constitute  the  beginning  points  of  this 
development  which  were  either  new  to  England,  or  existed 
iii  such  rudimentary  form  that  it  is  clearly  the  Norman  and 
not  the  Saxon  from  which  the  growth  begins.     They  are  the 


86  THE  NORMAN  PERIOD 

writ,  the  jury,  and  the  royal  itinerant  or  circuit  justice. 
The  writ  was  used  by  the  Saxons  and  its  later  use  has  been 
regarded  by  some  as  a  Saxon  survival,  but  the  writs  which 
play  the  chief  part  in  the  judicial  development  are  surpris- 
ingly like  certain  Frankish  writs  and  have  no  Saxon  proto- 
types. It  probably  is  to  be  said  that  we  have  in  the  writ 
another  case  where  Saxon  and  Norman  easily  ran  together 
into  one,  but  that  the  impulse  to  growth  was  Norman.  The 
writ  primarily  was  a  mandate  of  the  king's  directed  to  the 
sheriff  or  to  some  other  officer  of  the  government,  or  to  a 
private  individual,  directing  that  some  specified  act  be  per- 
formed.5 As  such  it  was  the  authorizing  and  moving  force 
which  the  royal  government  employed  to  initiate  and  carry 
through  the  judicial  changes  of  the  age.  In  the  process  its 
own  development  consisted  in  fitting  the  form  of  the  writ 
more  and  more  exactly  to  the  action  it  was  to  initiate  and 
therefore  in  the  multiplication  and  classification  of  -forms  of 
writs. 

-  The  jury  may  be  called  the  pivotal,  or  perhaps  the  causal, 
institution  in  the  process  of  growth,  for  it  was  in  a  very  large 
proportion  of  the  cases  the  desire  to  use  the  jury  which  led 
to  the  extension  of  the  writ  and  to  the  employment  of  the 
itinerant  justice.  The  jury  was  not  Saxon.  The  Normans 
had  inherited  it  from  the  Frankish  Empire  in  which  it  goes 
back  into  very  early,  perhaps  even  into  Roman  times.  Dur- 
ing all  the  Frankish  and  Norman  use  of  it,  however,  it  had 
shown  no  tendency  to  grow.  Its  development  into  its  mod- 
ern applications  is  after  the  Conquest.  As  brought  into 
England  in  1066,  the  jury  may  be  most  simply  described  as 
machinery  for  ascertaining  a  disputed  or  desired  fact  by  the 
testimony  of  those  most  likely  to  know  about  it.  Selected 
persons  were  summoned  before  an  officer  commissioned  for 
the  occasion,  put  on  oath  (jure),  the  specific  question  was 
put  before  them,  and  they  were  required  to  say  whether  the 
oStubbs,  S.  C.,  97;  A.  and  S.,  7. 


THE  JURY  A  ROYAL  INSTITUTION  87 

fact  was  this  or  that.6  If  they  did  not  know,  they  might 
say  so,  but  the}'  were  selected  because  it  was  supposed  that 
they  would  know.  Twelve  as  the  number  of  the  jurors,  the 
requirement  of  unanimity,  the  submission  of  evidence  to  the 
jury,  and  the  excusing  of  a  juryman  because  he  had  formed 
an  opinion  about  the  fact  in  question,  are  all  later  modi- 
fications of  the  original  institution.  At  the  beginning  the 
jury  was  a  royal  institution  only,  a  prerogative  institution. 
It  could  be  used  only  by  the  king  and  only  in  a  king's  court 
before  a  royal  justice.  The  great  advantage  which  it  of- 
fered was  that  a  fact  in  dispute,  or  a  fact  which  it  was  de- 
sired to  ascertain,  could  be  established  by  the  sworn  testi- 
mony of  those  most  likely  to  know,  and  in  the  neighborhood 
where  the  evidence  was  most  likely  to  be  found. 

The  desire  to  use  the  jury  was  the  chief  reason  which  led 
to  the  more  common  employment  of  royal  justices  and  to 
the  final  organization  of  a  permanent  and  regular  system 
of  circuit  justices  and  courts.  This  desire  was  not  merely 
felt  by  individuals  who  wished  to  get  a  better  method  of 
proving  facts  in  their  suits  at  law  than  by  the  older,  less 
satisfactory  procedure,  but  also  by  the  king  who  made  great 
administrative  use  of  the  jury  in  holding  local  officers  to 
proper  conduct,  in  taxation,  and  indeed  in  any  question  of 
interest  to  the  government.  From  the  beginning  by  special 
permission  in  each  case,  which  of  course  had  to  be  paid  for, 
the  king  allowed  his  jury  to  be  used  by  private  persons  in 
the  trial  of  their  causes  in  his  local  courts  before  his  jus- 
tices. In  such  cases  and  in  all  cases  the  writ  was  the  jus- 
tices' commission  to  act  for  the  king  and  at  the  same  time 
it  was  permission,  or  a  mandate,  for  a  jury  for  the  spcci'i  : 
purpose  described,  though  the  description  in  early  cases  i  i 
sometimes  vague. 

The  justice   commissioned  was  very   often   the   sheriff   of 
the  county  in  which  the  case  arose ;  sometimes  others  were 
e  A.  and  S.,  2;  Penn.  I.  fi.  22. 


88  THE  NORMAN  PERIOD 

named  to  act  with  him;  sometimes  a  justice,  or  justices, 
were  named  without  the  sheriff.  Usually,  if  not  always,  the 
justices  were  to  go  into  the  locality  where  the  parties  resided 
and  try  the  case  where  the  evidence  could  easily  be  obtained, 
that  is,  they  were  the  king's  missi.7  The  court  which  was 
summoned  to  meet  them  and  to  try  the  case,  was  a  local  court, 
a  hundred  or  a  county  court,  or  a  court  of  combined  hun- 
dreds or  counties.  The  result  was  that  the  king's  missi 
held  a  king's  court,  a  curia  regis,  using  the  machinery  of  the 
old  local  court.  In  this  court  no  change  was  made  at  first  in 
the  old  procedure  except  in  the  use  of  a  jury  for  the  estab- 
lishment of  disputed  fact.  The  first  great  advance  in  the 
growth  of  this  new  system  of  justice  consisted  in  grouping 
the  counties  together  into  circuits  to  each  of  which  a  body 
of  justices  was  commissioned  to  go  for  the  trial  of  cases 
that  might  have  obtained  the  necessary  permission,  that  is, 
a  step  towards  making  the  system  regular  and  permanent. 
Of  this  advance,  as  a  part  of  the  judicial  system,  there  is 
no  sign  in  the  reign  of  William  I,  only  slight  indications  in 
that  of  William  II,  while  the  signs  that  such  a  regular  plan 
was  in  use  in  the  time  of  Henry  I  are  much  more  numerous 
but  not  detailed  enough  to  enable  us  to  localize  the  system 
definitely. 

For  one  purpose  William  I  made  use  of  this  machinery 
in  a  form  almost  as  fully  developed  as  it  was  when  constantly 
employed  by  his  great  grandson,  Henry  II.  It  was  used  to 
gather  the  facts  from  which  was  made  that  unique  record 
which  was  called  before  very  long,  as  we  still  call  it,  Domes- 
day Book,  the  record  from  which  no  appeal  could  be  taken.8 
The  Domesday  survey,  or  inquest,  was  an  inquiry  made 
throughout  the  kingdom  in  1086  to  ascertain  the  ownership 
of  each  estate  of  land  and  its  value  for  taxation,  for  the 
Danegeld.  To  get  the  facts  royal  commissioners,  called 
barons,  justices,  or  legati,  that  is  missi,  were  sent  to  each 

7  A.  and  S.,  4. 

sStubbs,  8.  C,  lOOff;  A.  and  S.,  2-3;  Cheyney,  Readings,  111-115. 


THE  DOMESDAY  BOOK  89 

county,  probably  to  a  number  of  counties  grouped  in  a  cir- 
cuit. The  county  court  was  summoned  to  meet  them  just 
as  it  was  summoned  later  to  meet  the  justice  on  his  circuit. 
The  whole  "  county  "  sometimes  decided  questions  of  special 
importance,  but  the  business  of  the  survey  was  done  as  a 
rule  by  the  sworn  jury  of  each  hundred  which  was  present 
as  in  the  later  justice  courts,  and  in  the  same  way  also  the 
questions  to  be  answered  were  submitted  to  these  hundred 
juries.  They  were  required  to  tell  the  name  of  each  manor 
and  the  name  of  its  holder  at  the  time  of  King  Edward  and 
at  the  time  of  the  inquiry ;  the  number  of  hides  it  contained ; 
the  number  of  ploughs  employed  on  the  lord's  domain  lands, 
and  the  number  on  the  lands  of  the  tenants  —  a  rough  way 
of  determining  the  amount  of  land  in  cultivation.  Then 
they  gave  the  population  of  the  manor  in  classes:  freemen, 
villeins,  cotters  and  serfs ;  the  amount  of  forest  and  meadow ; 
the  number  of  pastures,  mills  and  fishponds ;  and  what  the 
value  of  the  manor  was  in  the  time  of  King  Edward,  when 
granted  by  King  William,  and  at  the  date  of  the  inquest. 
The  facts  thus  gathered  were  put  into  permanent  form  in 
the  Domesday  Book,  a  storehouse  of  information  on  the 
economic  condition  of  England  at  the  end  of  the  eleventh 
century,  but  from  our  point  of  view  remarkable  for  the  com- 
pleteness with  which  it  foreshadows  the  new  judicial  system 
established  a  century  later. 

The  beginning  of  king's  local  courts,  presided  over  by 
king's  missi,  using  the  old  county  courts,  and  foreshadowing 
a  regularized  system  of  royal  circuit  courts,  in  which  jury 
and  writs  were  developed  as  parts  of  a  new  procedure  and 
a  common  law  was  carried  to  all  parts  of  the  kingdom,  opened 
the  first  stage  in  the  unifying  of  the  kingdom  institutionally, 
in  the  uniting  of  Saxon  and  Norman  institutions  into  a  single 
whole.  That  in  this  final  common  whole  more  of  the  Saxon 
seems  to  have  disappeared  from  view  than  of  the  Norman 
does  not  prove  that  Saxon  institutions  made  no  contribution 
to   the  result.     They   furnished   almost   everywhere   a   solid 


90  THE  NORMAN  PERIOD 

foundation  on  which  the  new  construction  rested,  as  in  the 
case  of  the  surviving  county  and  hundred  courts  already 
referred  to.  This  process  of  unification  went  on  in  two 
stages.  One  is  that  just  mentioned,  which  we  shall  shortly 
consider  more  fully.  It  is  really  a  process  of  carrying  cer- 
tain Norman  institutions  belonging  to  the  central  govern- 
ment down  into  the  counties  and  uniting  them  there  with  old 
Saxon  local  institutions  to  produce  new  results.  For  these 
results  really  were  new  —  new  uses  of  writs,  justices  and 
juries.  This  stage  of  the  process  gave  rise  to  the  modern 
Anglo-Saxon  judicial  system.  The  second  stage  begins  later, 
in  the  middle  of  the  thirteenth  century,  and  is  a  reverse 
process.  Certain  results  which  characterize  local  govern- 
ment and  procedure  as  a  consequence  of  the  first  process, 
were  brought  up  from  the  counties  and  united  with  institu- 
tions of  the  central  government  to  produce  further  new  re- 
sults. This  second  stage  gave  rise  to  the  Anglo-Saxon  forms 
of  representative  government,  and  to  parliament. 

It  was  not  merely  the  judicial  organization  of  the  coun- 
try which  was  rapidly  improving  during  the  period  covered 
by  this  chapter,  but  also  the  administrative  system,  or  to 
state  more  specifically  the  chief  interest  with  which  admin- 
istration was  at  that  time  concerned  —  the  financial.  The 
Anglo-Norman  state  made  no  great  improvement  on  the 
Saxon  in  the  matter  «of  public  revenue ;  the  regular  sources 
of  income  remained  the  same,  made  somewhat  more  produc- 
tive but  not  increased  materially  in  number.  The  irregular 
feudal  revenue,  though  occasionally  large  in  amount,  had  not 
yet  been  developed,  as  it  finally  was  to  be,  into  a  more  con- 
stant and  dependable  income.  The  strength  of  the  govern- 
ment, in  which  the  sheriff  shared,  not  merely  improved  the  col- 
lection of  the  revenue  but,  through  the  greater  security  which 
it  gave  to  business  and  property,  increased  the  amount  to  be 
collected.  The  sheriff  was  still  the  officer  who  was  respon- 
sible for  the  financial  interests  of  the  state  in  his  county, 
and  most  of  the  new  payments  which  the  Normans  intro- 


ORIGIN  OF  THE  EXCHEQUER  91 

duced,  like  the  relief,  it  fell  to  him  to  collect.  Before  the 
end  of  the  reign  of  Henry  I,  the  accounting  of  the  sheriff 
at  the  treasury  was  put  into  the  improved  and  rather  elabo- 
rate form  which  it  retained  for  many  generations  —  the  ac- 
counting at  the  exchequer. 

Just  when  the  peculiar  system  of  accounting  which  is  asso- 
ciated with  the  exchequer  began,  and  when  the  special  ses- 
sion of  the  small  council,  set  apart  for  the  purpose,  began 
to   be    called   technically   the   exchequer,   as   if   it   might   be 
something  different  from  ordinary  sessions,  cannot  be  said 
with  certainty.     We  can  say  that  the  more  the  subject  is 
investigated  the  more  an  early  origin  seems  likely  and  that 
at  present  the  earliest  evidence  of  use  is  English  rather  than 
Norman.     The  system  of  accounting  gave  rise  to  the  name 
exchequer.     The  official  members  of  the  small  council,  with 
one  or  two  others,  and  their  clerks  to  keep  the  records,  sat 
about  a  table  with  a  chequered  cloth,  or  cloth  divided  into 
columns  of  squares  for  pence,  shillings,  pounds  and  multiples 
of  pounds.     On  these  squares  counters  were  placed  and  moved 
about   as  the  accounting  went   on  —  an   adaptation   of  the 
abacus    method    of    reckoning.     Before    this    tribunal    each 
sheriff  appeared  twice  a  year,  at  Easter  to  make  a  prelimin- 
ary, and  at  Michaelmas  a  final  accounting.     The  scrutiny 
was  minute  and  as  it  went  on  nearly  every  item  was  checked 
by  written  records.     The  sheriff  was  allowed  credit  for  ex- 
penses which  he  had  incurred  by  written  order  and  for  the 
income  of  those  royal  manors  once  making  part  of  his  ferm 
which  the  king  had  given  away.     He  was  charged  with  the 
amount  of  this  ferm,  with  the  amercements  in  king's  pleas 
which  were  not  included  in  his  ferm  but  noted  in  the  records 
of  the  justices,  with  the  income  of  escheats   and  of  lands 
falling  to  the  king  not  included  in  the  ferm,  and  with  debts 
which  he  had  been  directed  to  collect,  including  sums  paid 
to  the  king  by  individuals  for   favors  or  exemptions.     He 
also  accounted  for  reliefs  which  had  fallen  due  within  the 
year,  and  for  lands  in  wardship.     From  the  accounts  thus 


92  THE  NORMAN  PERIOD 

rendered  the  general  record  for  the  year  was  put  into  per- 
manent form,  making  the  series  which  we  call  the  Pipe  Rolls. 
The  earliest  of  these  which  has  come  down  to  us  is  for  the 
year  1130,  but  the  system  had  been  in  operation  for  some 
years  at  that  date.  We  have  no  Pipe  Rolls  for  Stephen's 
reign  and  the  continuous  series  begins  with  the  second  year 
of  King  Henry  II. 

The  development  of  distinct  institutions  of  government 
out  of  the  simple  and  generic  constitution  of  the  feudal  state 
was  to  be  very  largely  a  process  of  differentiation,  by  which 
the  primitive  institutions  of  the  eleventh  century  were  to  be 
split  up  into  new  ones  along  the  lines  of  the  various  functions 
they  originally  performed.  This  process  of  differentiation 
affected  especially  the  small  council  because  it  was  the  per- 
manent supervising  organ  of  the  central  government  having 
control  of  almost  all  the  business  of  the  state.  We  shall 
have  to  note  this  specialization  of  function  and  consequent 
differentiation  at  several  points  in  the  history.  Here  we 
have  to  note  the  first  in  the  series,  as  we  know  it,  and  one 
that  is  typical  of  many  others.  The  first  step  was  taken 
when  the  financial  supervision  of  the  council  was  set  off  to 
be  carried  on  in  a  special  session  for  which  the  official  mem- 
bers of  the  council  seem  to  have  had  a  peculiar  responsibility. 
At  first  it  was  merely  a  session  of  the  council  having  special 
reference  to  its  financial  duties,  but  capable  of  performing 
any  other  function  of  the  council  in  the  same  session.  This 
capacity  remained  to  the  exchequer  for  a  hundred  years 
or  more,  to  result  finally  in  a  differentiation  within  itself, 
forming  the  financial  exchequer  and  the  exchequer  of  pleas, 
or  the  exchequer  as  one  of  the  common  law  courts. 
—  During  the  period  of  almost  fifty  years  from  the  death 
of  William  I,  to  that  of  his  son  Henry  I,  the  royal  power 
was  steadily  advanced  by  the  vigor  of  the  kings,  by  the  fail- 
ure of  baronial  insurrections,  by  the  establishment  of  cus- 
toms at  first  hardly  legal  but  soon  accepted,  and  by  the 
improvement  of  governmental  machinery,  judicial  and  ad- 


STATE  CONTROL  OF  CHURCH  93 

ministrativc.  But  at  the  end  of  that  period  the  constitu- 
tional absolutism  which  was  forming  was  brought  to  a  test 
which  it  survived  with  difficulty.  Henry  I,  was  succeeded 
by  his  nephew  Stephen  whose  position  was  weak  because 
his  right  to  the  throne  was  disputed  by  Henry's  daughter, 
Matilda,  wife  of  the  count  of  Anjou,  and  because  he  was 
himself  irresolute  and  unable  to  compel  men  to  obey  him. 
The  result  was,  where  so  much  still  depended  on  the  per- 
sonality of  the  king,  where  the  constitution  was  not  yet  so 
firmly  fixed  as  to  be  habitual,  that  the  state  fell  into  dis- 
order. The  new  financial  and  judicial  machinery  became 
a  good  deal  disorganized,  and  England  had  a  little  taste  of 
what  feudal  society  might  be  when  the  bonds  of  central  con- 
trol were  loosened.  Nothing  was  permanently  lost,  how- 
ever. Some  progress  in  the  direction  of  law  was  actually 
made  and  even  more  in  Normandy,  and  when  Matilda's  son, 
Henry  II,  succeeded  Stephen  in  1154,  he  re-established,  in  a 
couple  of  years  and  with  a  little  difficulty,  the  financial  and 
judicial  machinery  and  the  strong  monarchy  of  his  grand- 
father, Henry  I. 

In  one  direction  Stephen's  weakness  had  constitutional 
results  far  more  permanent  than  any  change  upon  the  merely 
political  side.  Over  one  important  element  of  state  and  con- 
stitution the  monarchy  never  recovered  the  power  which 
Henry  I  had  received  from  his  brother,  power  over  the 
church.  At  the  moment  when  William  I  made  his  conquest 
of  England  and  brought  the  Saxon  church  under  a  more 
strict  state  control  than  ever  before,  a  great  reformation 
in  the  Latin  church  of  the  west  was  just  reaching  its  cul- 
mination. The  reform  movement  which  had  started  in  the 
monastery  of  Cluny  in  the  tenth  century,  had  for  its  ultimate 
object  a  constitutional  advance  by  which  the  government  of 
the  Roman  church  should  be  made  an  absolute  and  highly 
centralized  monarchy  under  the  pope.  The  success  of  the 
movement  was  complete.  At  the  end  of  the  eleventh  century 
a  powerful  imperial  government,  with  all  the  machinery  of 


94.  THE  NORMAN  PERIOD 

a  state,  based  upon  the  union  of  all  state  churches  and  sub- 
jecting them  all  to  itself,  took  its  place  beside  the  state  gasL- 
ernments  of  Europe.  Conflict  was  in  the  nature  of  the  situa- 
tion inevitable.  The  church  organization  of  England  was  in 
important  ways  a  part  of  the  state  government.  Extensive 
fields  of  law,  marriage,  divorce,  inheritance,  belonged  wholly 
to  its  courts.  Service  from  its  fiefs  was  essential  to  army, 
legislature,  and  courts.  The  bishop  as  a  baron,  better  edu- 
cated and  of  broader  outlook  than  the  lay  baron,  was  indis- 
pensable to  the  efficient  working  of  feudal  government.  On 
the  other  hand,  if  there  was  to  be  a  universal  monarchical 
church,  the  case  for  it  was  just  as  clear.  The  church  of 
every  state  was  an  essential  portion  of  such  a  monarchy, 
without  which  it  could  not  be,  and  must  be  obedient  to  it 
and  serve  it  primarily.  Conflict  was  inevitable  and,  where 
there  was  so  much  of  justice  in  both  claims,  compromise 
was  the  only  way  of  reconciliation. 

The  double  position  of  the  bishop,  as  an  essential  work- 
ing officer  of  feudal  government,  as  an  essential  working  offi- 
cer of  the  ecclesiastical  monarchy,  brought  on  the  first  and 
most  severe  phase  of  the  conflict.  This  question,  which 
should  appoint  the  bishop,  church  or  state,  from  which  should 
be  derived  his  authority  and  to  which  should  he  be  primarily 
responsible,  was  fought  out  in  the  early  years  of  Henry  I, 
between  the  king  and  Anselm,9  the  archbishop  of  Canterbury, 
and  the  compromise  by  which  it  was  terminated  was  the  same 
as  that  made  later  between  the  emperor  and  the  pope.  The 
^church  should  select  the  bishop.  The  king  should  then  re- 
ceive his  fealty  and  confer  upon  him  the  fiefs  belonging  to 
his  see,  and  then  he  should  be  consecrated  bishop.  The  king 
thus  obtained  virtually  a  veto  for,  if  he  withheld  the  fiefs, 
the  endowment  lands  of  the  bishopric,  the  church  would 
hardly  insist  upon  consecrating  the  particular  man.  The 
compromise  was  as  fair  a  one  as  could  be  made,  but  the  church 
really  gained  and  the  king  lost.  If  all  the  results  of  the 
»Cheyney,  Readings,  125-127;  G.  and  H.,  63. 


JURISDICTION  OF  CHURCH  COURTS  95 

change  appeared  only  gradually,  they  were  all  involved  in 
the  settlement.  The  church  was  no  longer,  as  it  had  been 
traditionally,  the  obedient  servant  of  the  state.  It  had  come 
up~^Tolig~stde"~the"government  of  the  king  as  an  independent 
and  rival  power.  It  received  its  law  and  its  judicial  decisions 
from  arPoutside  sovereign,  and  it  garrisoned  the  land  with 
the  devoted  bands  of  the  new  religious  orders. 

The  full  consequences  of  this  change,  Henry  I  never  ex- 
perienced. His  rule  was  so  strong  that  the  concessions  he 
had  made  had  little  practical  effect.  But  Stephen  was  in 
a  different  position.  At  the  beginning  he  had  been  obliged 
to  secure  the  support  of  various  interests  by  liberal  prom- 
ises, which  were  clearly  of  the  nature  of  bargains,  and 
emphasized  though  in  slightly  different  way  the  contract 
relation  between  king  and  baronage  as  did  the  charter  of 
Henry  I.  Stephen's  first  charter  is  general  in  its  terms 
and  amounts  to  no  more  than  a  confirmation  of  Henry's,  but 
his  second  is  more  specific  and  is  really  a  charter  to  the 
church.10  What  it  granted  that  was  new,  or  could  be  made 
something  new,  was  jurisdiction  to  the  church  courts  over 
ecclesiastical  persons  and  their  effects.  The  terms  of  the 
charter  might  be  interpreted  in  more  than  one  way  but 
there  is  no  doubt  but  that  what  it  was  made  then  to  mean, 
was  that  all  cases,  civil  and  criminal,  in  which  ecclestiastics 
were  involved  were  removed  from  the  state  courts  into  church 
courts  —  an  advance  of  its  practical  government  within  the 
"state  which  the  church  had  long  striven  for  but  scarcely 
anywhere  obtained. 

This  was  the  situation  which  Henry  II  found  when  he  came 
to  the  throne.  In  his  first  work  of  restoring  the  judicial 
system  as  the  means  of  re-establishing  order  and  security 
he  came  at  once  face  to  face  with  the  fact  that  a  large  and 
important  part  of  the  people  were  beyond  the  control  of 
the  state  courts.  The  cleric  in  orders  who  committed  a 
crime  could  be  tried  in  the  church  courts  only,  whose  pun- 
"Stubbs,  S.  C,  142-144;  A.  and  S.,  7-9. 


96  THE  NORMAN  PERIOD 

ishments  seemed  wholly  inadequate.  Henry's  instant  deter- 
mination to  bring  this  condition  to  an  end  brought  on  the 
famous  conflict  with  Thomas  Becket,  the  Archbishop  of 
Canterbury  of  his  own  "appointment.11  It  is  the  constitu- 
tional aspect  of  this  conflict  only  with  which  wre  are  con- 
cerned. Henry  succeeded  in  getting  from  the  archbishop  a 
promise  to  observe  the  ancient  customs  of  the  realm,  and 
this  would  have  settled  the  matter  in  the  king's  favor  if  it 
had  been  faithfully  observed  by  Thomas,  for  there  is  no 
doubt  but  that  the  king's  position  with  reference  to  the 
jurisdiction  of  the  state  courts  was  historically  correct. 
But  Henry  did  not  stop  with  this  concession,  and  the  arch- 
bishop had  some  justification  in  refusing  to  be  bound  as 
the  matter  was  finally  put.  In  order  to  make  a  permanent 
record  of  the  relation  between  the  two  sorts  of  courts,  the 
king  demanded  of  the  great  council  a  recognition  of  the 
ancient  customs  of  the  kingdom.  A  "  recognition  "  was  the 
formal  answer  of  the  jury  appointed  to  make  an  inquiry, 
or  "  inquest,"  and  the  document  which  we  have,  the  Consti- 
tutions of  Clarendon,  of  1164,  the  first  of  the  great  con- 
stitutional documents  of  Henry's  reign,  may  well  have  been 
drawn  up  by  a  jury,  but  we  do  not  know  how  the  jury  was 
made  up  and  the  document  itself  had  more  nearly  the  form  of 
an  act  of  the  great  council.12 

The  Constitutions  did  not  demand  that  the  state  court 
should  try  the  question  of  the  guilt  of  the  accused  man,  if 
in  orders,  but  that  he  should  be  arrested  by  the  state  of- 
ficer, to  be  brought  before  a  state  court  for  accusation, 
then  turned  over  to  a  church  tribunal  for  trial  and,  if  found 
guilty,  for  degradation  from  his  orders.  Then  he  was  to 
be  returned  to  the  state  for  sentence  and  punishment.  But 
the  Constitutions  went  beyond  this  particular  question. 
They  reasserted  practically  the  three  rules  of  William  I, 
though  the  pope  was  not  specially  referred  to ;  they  pro- 

11  Cheyney,  Readings,  143-160. 

"Stubbs,  8.  C,  161-167;  A.  and  S.,  11-14. 


CONSTITUTIONS  OF  CLARENDON  97 

vided  that  suits  as  to  the  right  of  presentation  to  churches 
should  be  tried  in  secular  courts,  and  also  suits  as  to  the 
ownership  of  land,  unless  it  could  be  proved  that  the  church 
held  by  the  f  rank -aim  oicfn  tenure;  and  they  defined  clearly 
and  emphatically  the  feudal  position  of  the  bishop  as  a 
vassal  of  the  king's.  Becket  refused  to  be  bound  by  the 
Constitutions  though  the  other  bishops  submitted,  and  the 
struggle  between  archbishop  and  king  ran  rapidly  to  ex- 
tremes, and  finally  to  the  murder  of  Thomas. 

The  reaction  which  followed  against  the  king  was  natural, 
and  he  was  obliged  to  abandon  in  form  his  most  extreme 
claims  in  order  to  obtain  reconciliation  with  the  church. 
In  practice,  however,  he  did  not  keep  his  promises  any  more 
faithfully  than  his  grandfather  had  done.  In  the  end  the 
state  secured  all  that  the  Constitutions  asserted  with  the 
one  exception  of  the  punishment  of  clerics  accused  of  felonies 
less  than  treason.  The  punishment  of  treason  and  of  mis- 
demeanors remained  to  the  state.  The  exception  in  the  case 
of  felonies  is  what  was  long  known  in  English  law  as  "  bene- 
fit of  clergy  " —  one  accused  of  a  felony  "  pled  his  clergy  " 
—  pled  that  he  was  in  orders  and  so  could  not  be  tried  or 
punished  by  the  state.  If  the  fact  was  proved  according 
to  the  established  rules,  he  was  turned  over  to  the  ecclesias- 
tical court  and  so  escaped  the  punishment  inflicted  by  the 
state. 

Bibliographical  Note. —  C.  H.  Haskins,  Norman  Institu- 
tions, 1918;  The  Abacus  and  the  King's  Curia,  E.  H.  R.,  xxvii, 
101.  1912.  W.  A.  Morris,  The  Office  of  Sheriff  in  the  Early 
Norman  Period,  E.  H.  R.,  xxxiii,  145,  1918.  R.  L.  Poole,  The 
Exchequer  in  the  Twelfth  Century,  1912.  J.  H.  Round,  Geoffrey 
de  Mandeville,  1892;  Feudal  England,  1895;  The  Commune  of 
London,  1899;  The  King's  Serjeants  and  Officers  of  State,  1911. 
T.  F.  Tout,  The  Administrative  History  of  Mediaeval  England,  2 
Vols.,  1920. 


CHAPTER  IV 

CENTRALIZATION  AND  LAW 

Henry  II,  could  not  have  foreseen  the  ultimate  results  of 
the  reforms  introduced  in  his  reign,  though  they  were  to 
be  of  such  enormous  consequence  in  the  legal  and  constitu- 
tional history  of  the  future.  No  man  of  his  time  could 
have  foreseen  all,  and  Henry  was  not  distinguished  by  any 
special  foresight  even  in  the  simpler  political  problems  that 
confronted  him.  It  was  indeed  probably  as  a  political  prob- 
lem that  the  king  looked  at  the  question  of  reform.  The 
central  government  had  been  weakened;  its  strength  must 
be  restored.  There  had  been  much  crime  and  disorder  in 
the  country ;  it  must  be  repressed.  Life  must  be  made 
secure.  Property  must  be  protected.  The  contemporary 
conception  of  the  first  duty  of  a  king,  which  Henry  no 
doubt  shared,  was  that  he  should  make  justice  prevail. 
The  good  king  was  a  "  lion  of  justice,"  as  men  called  his 
grandfather,  and  Henry  avowed  that  his  ambition  was  to 
follow  in  his  grandfather's  steps.  There  was,  however,  a 
little  more  direct  advantage  for  the  king's  government  in 
the  policy  which  he  followed  than  the  satisfaction  of  duty 
performed,  and  this  further  advantage  was  undoubtedly  a 
motive  of  action.  The  machinery  of  administration  and  of 
justice  was  identical  in  that  day.  To  improve  the  machinery 
of  justice  was  to  improve  the  collection  of  the  revenues  and 
increase  the  royal  income.  To  improve  the  courts  in  itself 
was  to  increase  the  revenue  because  it  increased  the  number 
of  fees  and  amercements  falling  to  the  crown,  by  no  means 
a  small  source  of  income.      Some  one  who  was  influential  in 

carrying  through  those  changes,  either  the  king  or  some  of 

98 


JUDICIAL  ORGANIZATION  99 

his  ministers,  had  other  motives  also  in  what  was  done. 
The  age  is  one  in  which  the  processes  of  justice,  the  organi- 
zation of  the  courts  and  the  procedure  necessary  to  secure 
justice  in  them,  was  greatly  improved.  There  is  no  reason 
why  we  should  not  suppose  that  these  improvements  were 
foreseen  and  desired,  and  that  the  government  believed  it 
worth  doing  to  make  justice  easier  to  secure  and  the  ways  of 
getting  it  simpler  and  more  certain.  It  was  a  time  of  great 
lawyers  and  administrators  who  had  a  large  share  in  actual 
government. 

It  was  upon  this  side,  judicial  organization,  law  and  pro- 
cedure, that  the  institutional  results  of  this  age  were  to 
have  the  longest  life  in  a  form  but  little  changed  from  that 
then  given  them.  The  constitutional  results  of  the  period 
have  been  equally  permanent,  and  of  even  more  vital  impor- 
tance in  the  history  of  the  race,  but  they  show  themselves 
today  in  forms  that  never  would  be  recognized  by  the  min- 
isters of  Henry  II,  though  Richard  de  Luci  and  Ranulf 
Glanvill,  Henry's  great  judges,  would  quickly  feel  them- 
selves at  home  in  a  court  of  law  in  any  part  of  the  Anglo- 
Saxon  world.  There  would  be  much  that  would  seem  strange 
to  them,  and  much  that  they  would  not  understand  at  first, 
especially  in  substantive  law,  but  in  machinery  and  proced- 
ure they  wo.uld  recognize  at  a  glance  their  own  work  and 
quickly  they  would  see  how  all  had  come  out  of  the  begin- 
ning they  made,  for  the  common  law  and  equity  of  all 
Anglo-Saxon  states,  as  well  as  their  judicial  organization, 
was  founded  by  them.  This  side  of  our  institutional  life, 
as  the  immediate  result  of  the  time,  must  occupy  us  chiefly 
in  this  chapter,  but  we  must  also  keep  the  constitutional 
result  constantly  in  mind. 

The   constitutional  result   in   a   single  word  was   central-- 
ization.     The  new  organization  given  to  the  judicial  system 
and  the  new  processes  of  securing  justice  were  an  organiza- 
tion   of    centralization.     Through    these    new    methods    the 
Norman  central  government  reached  down  into  every  locality 


100  CENTRALIZATION  AND  LAW 

and  put  its  hand  on  every  man.  The  Norman  central  gov- 
ernment had  always  been  an  absolutism,  but  it  had  been  a 
practical  absolutism,  not  one  vested  in  constitutional  forms. 
-  What  was  happening  now  was  that  this  Norman  absolutism 
was  making  itself  constitutional,  was  finding  its  expres- 
sion in  law  and  institutions.  If  it  should  succeed,  if  it 
could  transform  itself  from  a  thing  of  habit  merely,  into 
the  spirit  and  necessary  interpretation  of  all  the  organiza- 
tion and  machinery  by  which  the  state  did  its  business,  it 
would  obtain  a  security  and  permanence  of  threatening  im- 
port for  the  future.  So  far  as  the  result  of  his  own  reign 
is  concerned,  Henry  II  did  all  in  this  direction  that  could 
be  done,  more  indeed  than  might  have  been  expected.  The 
machinery  which  was  devised  created  a  surprisingly  efficient 
centralization  for  the  twelfth  century.  It  was  left  to  the 
future  to  determine  its  permanence. 

The  first  great  age  of  change  in  the  constitutional  his- 
tory of  England,  after  the  Norman  Conquest,  shares  one  of 
its  prominent  characteristics  with  all  ages  of  similar  change 
in  history.  It  is  less  marked  by  the  invention  of  new  insti- 
tutions than  by  the  enlarged  use  of  old  ones  or  their  use 
in  new  applications.  The  effective  instruments  of  the 
changes  made  are  the  institutions  which  the  Normans 
brought  with  them  into  England,  king's  justices,  circuit 
courts,  writs  and  juries.  We  can  find  traces  of  most  of 
these  specific  changes  in  earlier  times,  either  in  those  of 
Henry's  father  in  Normandy  or  of  his  grandfather  in  Eng- 
land. But  their  combination  into  a  coordinate,  organic 
system,  their  permanent  incorporation  into  the  habitual 
machinery  of  the  central  government,  and  the  opening,  un- 
der fixed  regulations,  of  this  royal  machinery  to  the  use 
of  any  one  who  wished  to  use  it,  were  the  work  of  Henry  II. 
It  is  only  in  a  few  cases  that  we  can  tell  exactly  what  inno- 
vations were  made,  or  the  order  in  which  the  steps  were 
taken,  or  their  date.  The  best  that  we  can  do  is  to  treat 
the   subject   logically,   beginning  with   the   things   that   are 


THE  KING'S  LOCAL  COURT  101 

fundamental  and  seeing  how  others  are  involved  in  them, 
noticing  however  where  we  can  any  modifications  that  need 
to  be  made  because  of  specific  facts  which  we  know. 

In  the  whole  series  of  reforms,  the  thing  which  was  fun- 
damental both  logically  and  practically  was  the  king's  local 
court.  The  great  motive  on  the  king's  part,  underlying 
all  the  changes  and  bringing  them  all  together  into  a  sys- 
tematic whole,  was  to  get  a  session  of  the  curia  regis  in 
the  locality  in  which  had  originated  the  cases  to  be  con- 
sidered, and  the  king's  court  furnishes  the  conditions  which 
govern  all  the  rest.  There  is  no  evidence  to  show  that  any 
of  the  other  instruments  used,  justices,  writs  or  juries, 
were  ever  employed,  for  the  use  of  the  king  or  the  central 
government  or  by  royal  permission,  in  anything  except  a 
curia  regis.  If  the  writ  directed  that»a  local  trial  be  held, 
it  was  always  before  king's  justices  and  in  a  king's  court. 
If  a  private  person  got  permission  to  use  a  jury,  it  was 
always  before  king's  justices  and  in  a  king's  court.  There 
was  no  weakening  in  this  period  of  the  idea  that  all  this 
machinery  was  the  king's  personal  machinery  to  be  used 
by  other  persons  only  by  purchase  and-  permission. 

It  must  not  be  understood  that  the  king's  local  courts 
imply  any  interference  with  the  older  systems  of  local  courts, 
county  and  hundred.  By  the  end  of  another  century  the 
new  courts  were  to  supplant  the  old  county  courts  for  all 
except  very  small  cases,  but  at  first,  though  creating  to  some 
extent  a  competing  jurisdiction,  they  interfered  little  with 
the  popular  courts.  These  were  still  going  on  in  the  sec- 
ond half  of  the  twelfth  century  as  they  had  in  the  eleventh, 
with  the  same  composition,  procedure  and  functions,  and,  in 
the  case  of  the  hundred  court,  further  absorption  of  public 
courts  into  the  possession  of  private  lords  was  also  going 
on.  One  of  the  reforms  of  Henry  I  of  which  we  have  doc- 
umentary evidence  concerned  the  local  courts.  He  restored 
the  older  rules  as  to  their  times  and  places  of  meeting,  pro- 
tected them  against  irregular  use  by  local  officers  for  their 


102  CENTRALIZATION  AND  LAW 

personal  advantage,  and  laid  down  some  rules  for  their  pro- 
cedure when  used  for  his  own  purposes.1  It  seems  likely 
that  the  use  made  of  them  by  the  king  gave  them  at  first  a 
new  lease  of  life  rather  than  otherwise. 

The  justices  on  going  to  the  circuits  to  which  they  were 
assigned,  were  preceded  by  a  writ  sent  to  the  sheriff  of  each 
county  of  the  circuit  directing  him  to  summon  a  meeting  of 
the  justices.2  This  meeting  was  not  an  ordinary  assembly  of 
the  county  court  such  as  the  sheriff  called  together  at  inter- 
vals to  do  the  usual  county  business.  It  was  a  special  meet- 
ing called  for  the  special  purpose  of  furnishing  the  necessary 
local  machinery  for  holding  a  session  of  the  curia  regis  in  the 
county.  As  such  we  may  imagine  that  it  restored  the  county 
court  to  its  ideal  composition  before  exemptions  and  fran- 
chises granted  by  the  king  to  favored  individuals  and  corpor- 
ations, like  monasteries  and  boroughs,  had  relieved,  we  may 
almost  say,  whole  classes  from  attendance.  All  immunities 
and  privileges  were  suspended.  The  magnates,  lay  and 
clerical,  and  all  freeholders  were  summoned  to  attend  in  per- 
son, and  from  each  vill  the  reeve  and  four  legal  men,  and 
from  each  borough  twelve  legal  burgesses.  The  great  men 
acquired  at  once  the  right  to  be  represented  by  attorney, 
but  some  one  was  there  to  answer  for  them,  and  the  whole 
county  was  present  to  do  business  presented  to  them  by  the 
justices. 

Proceedings  in  the  court  were  opened  by  reading  the 
king's  writ  which  not  merely  directed  the  holding  of  the 
court  but  gave  the  justices  their  authority  to  act  and  to 
make  use  of  the  machinery  belonging  to  the  king.  Appar- 
ently some  one  of  the  justices  then  addressed  the  assembly 
explaining  the  purposes  of  the  "  iter  "  and  pointing  out  the 
advantages  of  the  system.  The  juries  were  then  formed. 
First  four  knights  were  chosen  for  the  whole  county  and 
put    on    oath.      They    then    chose    two    knights    from    each 

iStubbs,  S.  C,  122. 

2  Writ  of  1231,  Stubbs,  S.  C,  354-355;  A.  and  S.,  54. 


THE  LIST  OF  INQUIRIES,  1194  103 

hundred  who  were  also  sworn,  and  these  two  selected  ten 
others,  or  if  there  were  not  so  many  knights,  then  free  and 
legal  men,  who  with  themselves  made  up  the  jury  from  the 
hundred.  To  these  juries  were  submitted  the  list  of  in- 
quiries upon  which  the  justices  had  been  instructed  in  their 
commission  to  take  sworn  local  testimony. 

We  have  the  list  submitted  to  the  juries  in  the  iter  of 
1194,  and  it  is  undoubtedly  typical  of  the  business  attended 
to  by  the  justices.3  First  the  juries  are  to  report  all 
pleas  of  the  crown  which  should  be  tried,  whether  new  or 
old,  that  is,  left  unfinished  by  earlier  courts.  Then  they 
are  to  report  all  private  pleas  for  which  permission  to  use 
the  court  has  been  obtained  by  writ  or  which  had  been  sent 
down  to  be  tried  in  the  county  by  the  central  court,  the 
later  nisi  prills  cases,  that  is,  cases  transferred  from  the  com- 
mon- law  courts  at  Westminster  to  the  assize  circuit  courts. 
Then  follows  a  long  list  of  administrative  business  in  which 
the  king  had  a  direct  interest  but  which  fell  ordinarily  under 
the  sheriff's  care,  showing  clearly  how  the  itinerant  justices 
exercised  a  strict  control  over  the  sheriff's  conduct,  and  how 
the  count  served  as  an  effective  instrument  of  administration 
and  centralization.  Escheats  we<re  to  be  reported,  vacant 
churches  of  the  king's  gift,  wardships  and  marriages,  aids 
not  yet  paid,  forfeited  lands  and  chattels,  and  all  kinds 
of  crimes  and  offences  of  which  they  knew.  They  were  to 
lay  a  tallage,  to  see  to  the  stocking  and  care  of  the  royal 
manors,  to  enroll  the  property  of  Jews  and  debts  due  them, 
and  carry  out  a  new  regulation  with  regard  to  securities 
held  by  Jews,  and  to  report  on  all  recent  seizures  of  prop- 
erty by  royal  officers  with  the  reasons  for  them.  When  in 
one  of  our  state  circuit  courts  the  judge  directs  the  grand 
jury  to  visit  the  county  jail  and  report  on  the  wa}'  it  has 
been  administered  by  the  sheriff  since  the  last  visitation,  he 
is  performing  an  administrative  function  inherited  by  direct 
descent  from  the  original  itinerant  justice  of  the  twelfth 
aStubbs,  S.  C,  351-257;  A.  and  S.}  29-33. 


104  CENTRALIZATION  AND  LAW 

century.  Though  the  district  on  which  he  reported  was  a 
small  one,  the  office  of  a  juryman  in  those  days  was  no  sine- 
cure and  he  was  heavily  fined  for  any  mistakes  which  he  might 
make. 

Undoubtedly  it  was  the  administrative  and  criminal  busi- 
ness of  the  iter  in  which  the  king  of  the  twelfth  century  was 
chiefly  interested,  because  those  tilings  well  attended  to 
meant  larger  income,  better  order,  and  a  stronger  govern- 
ment. But  there  is  reason  to  suppose  that  he  was  interested 
also  in  the  civil  lawsuits  which  came  into  his  courts.  At 
any  rate  these  cases  were  destined  to  a  rapidly  increasing 
importance  relatively  in  the  business  of  the  court.  By 
gradual  degrees  in  the  course  of  a  century  and  a  half,  the 
government  got  other  ways  of  caring  for  the  administrative 
business  which  the  justices  had  supervised,  but  during  the 
same  period  the  civil  business  of  the  circuit  courts,  and 
with  them  of  all  the  royal  courts,  increased  enormously. 
Indeed  the  current  of  such  business  out  of  the  older  into 
the  newer  courts  began  to  run  strongly  from  the  very  begin- 
ning. The  process  was  not  due  merely,  though  it  was  in 
part,  to  the  increased  prosperity  which  came  with  better 
government.  It  was  due  in  large  part  to  the  fact  that  the 
new  royal  courts  furnished  litigants  with  much  better  ways 
of  getting  their  cases  tried,  notably  the  jury. 

The  older  courts  whose  procedure  in  trying  cases  has  been 
described,  though  they  had  a  rough  way  of  getting  at  the 
opinion  of  the  community  on  the  merits  of  a  case  in  the 
practice  of  compurgation  and  the  making  of  the  medial  and 
final  judgments,  still  had  very  imperfect  means  of  getting 
at  the  truth  about  the  facts  in  dispute  between  the  two 
parties.  The  great  advantage  which  the  royal  courts  had 
to  offer  was  a  decidedly  better  and  more  trustworthy  method 
of  finding  out  what  the  real  facts  were.  Instead  of  trusting 
to  what  might  seem  almost  like  accident  in  the  old  procedure, 
the  litigant  might  have  a  jury,  selected  from  the  men  of  the 
neighborhood  who  would  be  most  likely  to  know  what  the 


ORIGIN  OF  THE  WRIT  105 

facts  were,  and  who  were  required  by  the  justices  to  answer 
the  specific  question  submitted  to  them  from  their  knowledge 
and  on  their  oath.4  Their  answer  could  not  be  impeached. 
The  man  who  was  confident  that  he  had  a  good  case,  if  he 
could  only  get  the  facts  before  the  court,  was  anxious  to 
have  a  jury  trial.  The  process  of  getting  at  a  fact  by  the 
use  of  a  jury,  either  in  an  administrative  rasp  nr  p  gulf  nf 
law,  was  called  an  inquisition  or  inquest,  the  formal  answer 
of  the  jury   a  recognition  or  a  verdict    (veredictum) . 

But  the  jury  formed  no  part  of  the  regular  machinery 
of  the  government.  It  was  a  personal  process  belonging  to 
the  king,  which  had  come  down  to  him  from  the  Frankish 
kings,  used  only  in  exceptional  cases,  mostly  of  an  adminis- 
trative kind,  in  regard  to  taxation  or  the  conduct  of  royal 
officers,  or  to  recover  royal  property,  for  the  purpose  of 
establishing  the  facts  on  which  a  decision  depended.  If  a 
private  man  wished  to  get  the  facts  in  his  case  before  the 
court  by  the  verdict  of  a  jury,  he  must  get  the  king's  per- 
mission to  have  one.  He  could  not  have  one  otherwise.  This 
permission  was  given  in  a  writ,  describing  the  case  and 
giving  the  justice  authority  to  try  it.  Hence  arose  the 
principle  of  the  common  law  that  every  case  must  open 
with  a  writ,  the  original  writ.  Hence  arose  also  the  prin- 
ciple that  the  writ  must  describe  accurately  the  action  to 
be  tried,  for  permission  to  use  a  jury,  or  a  king's  justice,  in 
one  case  did  not  carry  with  it  permission  to  use  them  in 
another.  Almost  at  the  beginning  the  justices  began  to 
say  to  the  man  who  had  got  a  wrong  writ  that  he  could 
get  the  right  one  if  he  applied  for  it.  Hence  arose  also 
one  of  the  chief  characteristics  of  the  first  age  in  the  forma- 
tion of  the  common  law,  the  classification  of  actions  and 
the  multiplication  of  writs. 

The  practice  of  granting  writs  to  allow  private  men  to 
use  the  king's  machinery,  jury  and  justices,  began  almost 
immediately  after  the  Conquest.  During  the  first  generation 
4  A.  and  S.,  36-39,  Nos.  1  and  2. 


106  CENTRALIZATION  AND  LAW 

the  practice  increased  only  slowly,  so  far  as  we  can  now 
tell,  but  in  the  reign  of  Henry  I,  it  seems  to  have  been 
used  with  greater  frequency  and  somewhat  more  attention 
was  given  to  the  form  of  the  writ.  The  first  great  step  in 
advance  was  taken,  however,  so  far  as  England  is  concerned, 
by  Henry  II  near  the  beginning  of  his  reign.  The  step 
appears  to  have  been  taken  by  a  legislative  act,  an  ."  assize  " 
as  it  was  called,  or  more  than  one  of  them,  though  no  text 
has  come  down  to  us  and  we  are  not  even  sure  of  the  dates. 
These  acts  gave  assurance  that  in  certain  specified  cases, 
which  experience  had  shown  to  be  especially  frequent,  any 
man  could  have  a  trial  of  his  case  in  a  king's  court  with 
the  use  of  a  jury,  if  he  would  apply  for  the  necessary 
writ  and  pay  the  required  fees.  This  really  meant  that  in 
these  cases  the  new  procedure  became  a  part  of  the  regular 
judicial  procedure  and  was  thrown  open  to  the  nation. 
Combined  with  the  regularization  of  the  system  of  circuit 
courts,  the  assizes  made  a  long  step  in  transforming  the 
king's  special  machinery  of  government  and  centralization 
into  the  fixed  constitutional  machinery  of  the  state. 

The  special  cases  which  were  called  assizes  were  five  in 
number:5  the  three  so  called  possessory  assizes,  named  in 
Norman  French,  Novel  disseisin,  Mort  d'ancestor,  and  Dar- 
rein presentment,  the  assize  Utrum,  and  the  Grand  Assize.6 
The  three  possessory  assizes  did  not  submit  to  the  jury 
the  question  of  rightful  ownership  but  merely  whether  the 
plaintiff  had  not  been  wrongfully  dispossessed,  in  the  first 
two  cases  of  land,  in  the  third  of  the  right  of  presentation 
to  a  church  living,  leaving  the  question  of  title  to  be  settled 
later.  The  assize  Utrum  submitted  the  question  whether  a 
piece  of  land  in  the  hands  of  the  church  was  held  as  frank 
almoign  or  by  an  ordinary  feudal  tenure,  and  the  grand 
assize  was  for  the  use  of  the  defendant  whose  right  and 
title  had  been  called  in  question  and  who  preferred  to  have 

eStubbs,  fif.  C,  194-195;  A.  and  S.,  37-38;  Penn.  I.  6.  31-32. 
o  Stubbs,  S.  C,  190-192. 


THE  WRIT  OF  RIGHT  107 

the  matter  settled  by  a  jury  rather  than  by  the  judicial  duel. 

Nearly  all  the  cases  arising  in  the  twelfth  century,  in 
which  litigants  wished  to  get  the  advantage  of  the  new 
royal  prerogative  procedure,  were  feudal  cases  which  would 
be  begun  in  the  first  instance  in  baronial  courts.  Cases 
affecting  common  freehold  tenures  could  also  have  the  benefit 
of  the  same  procedure,  but  there  do  not  seem  to  have  been 
many  of  these  at  first.  Servile  tenures  were  excluded.  The 
genera]  effect  of  an  application  for  the  use  of  the  king's 
machinery  was  to  remove  the  case  from  the  baron's  court 
and  to  bring  it  into  a  king's  court.  Such  a  removal  would 
deprive  the  baron  of  his  right  to  try  the  cases  of  his  own 
men  and,  what  was  perhaps  more  important,  of  the  property 
right  to  the  fees  and  amercements  to  which  the  trial  gave 
rise.  This  result  might  naturally  seem  to  the  baron  to  be 
practical  confiscation,  and  he  would  be  disposed  to  ques- 
tion, if  possible,  the  king's  right  to  take  such  action.  The 
new  procedure  might  also  affect  cases  beginning  originally 
in  the  popular  courts  of  shire  and  hundred,  but  with  refer- 
ence to  them  the  process  would  be  simpler  and  more  natural. 

Besides  the  assize  writs,  the  new  prerogative  procedure 
brought  into  common  use  two  other  writs,  which  accomplished 
even  more  openly  the  same  result  of  transferring  the  baron's 
cases  out  of  his  court.  One  of  these  was  the  writ  of  right, 
the  other  the  writ  called  praecipe.  The  writ  of  right  was 
a  writ  directing  that  the  question  of  right,  of  title,  of  owner- 
ship, should  be  tried.  It  was  addressed  directly  to  the  lord 
of  the  court  commanding  him  to  do  justice  to  the  plaintiff, 
who  had  obtained  the  writ,  and  implying  that  for  some 
reason  not  stated,  he  was  unwilling  to  do  so.  It  concluded 
by  sa3Ting  that  if  he  did  not  do  it,  some  other  person  named, 
usually  the  sheriff,  would,  that  is,  it  appointed  a  royal 
commissioner  to  try  the  case  and  gave  him  authority  to 
proceed  in  it,  if  the  lord  did  not.  The  writ  was  based 
clearly  on  the  recognized  duty  of  the  king  to  see  that  justice 
was  done  to  everybody,  but  it  recognized  fully  the  first  right 


108  CENTRALIZATION  AND  LAW 

of  the  baron's  court  to  try  the  case.  Legally  it  rested  on 
the  appeal  of  defect  or  default  of  justice,  common  through- 
out the  feudal  world,  which  gave  the  vassal  the  right  to 
carry  his  case  into  the  court  of  the  higher  lord,  if  his  own 
lord  refused  to  try  it.  The  king  made  the  use  of  this  appeal 
easier  and  gave  it  to  be  clearly  understood  that  it  was  the 
business  of  his  courts  to  see  that  justice  was  done  in  the 
baronial  courts.7  So  far,  however,  the  barons  could  not 
complain.     The  king  was  clearly  within  his  rights. 

The  writ  praecipe  went  considerably  farther.  It  ignored 
the  baron's  court  altogether.  The  writ,  obtained  by  the 
plaintiff,  was  addressed  to  the  sheriff  and  directed  him  to 
command  (praecipe)  the  defendant  to  return  at  once  to  the 
plaintiff  the  land  in  dispute  or  else  to  appear  in  the  king's 
court  and  explain  why  he  had  not  done  so,  that  is  why  he 
had  not  obeyed  the  king's  command.8  His  explanation 
would  be  the  statement  of  his  side  of  the  case  and  a  part 
of  the  trial  in  the  king's  court.  The  writ  assumed  the 
plaintiff's  case  to  be  just  and  was  based  on  the  duty  of  the 
king  to  secure  justice  for  all.  It  passed  over  the  feudal 
law  and  the  rights  of  the  feudal  lord  entirely  and  fell  back 
on  a  higher  conception  of  the  royal  office,  not  as  lord  para- 
mount of  the  realm,  but  as  representative  of  the  divine 
government  of  the  world,  which  the  medieval  theory  assumed 
the  king  to  be.  In  this  way  it  was  a  direct  attack  upon 
the  feudal  government  of  the  state  and  a  long  step  towards 
recovering  the  rights  of  jurisdiction  which  had  been  allowed 
to  fall  into  private  possession.  It  affected  indeed  only  one 
class  of  cases,  but  it  was  an  important  part  of  a  whole 
system  of  changes  which,  taken  together,  constituted  the 
machinery  of  a  powerful  central  government  such  as 
existed  nowhere  else  in  Europe  at  that  date. 

The  effect  of  the  improved  judicial  process  and  the  result' 
ing  increase  of  business  in  creating  new  judicial  machinery 

t  Stubbs,  S.  C,  194. 

•  Stubbs,  8.  C,  190;  A.  and  S.,  28. 


PERMANENT  CENTRAL  COURT     109 

was  not  exhausted  in  making  the  system  of  the  itinerant 
justices  a  permanent  feature  of  the  government.  In  fact 
the  itinerant  justice  courts  themselves  led  directly  to  a  new 
creation  —  a  permanent  central  court,  with  specially  ap- 
pointed justices,  trying  the  same  kind  of  cases  as  the  circuit 
court  and  using  the  same  prerogative  procedure,  practically 
an  itinerant  justice  court  always  in  session,  the  court  known 
later  as  the  court  of  _cqmjrawn_pjcas,9  This  court  was  prob- 
ably not,  like  the  other  two  common  law  courts  of  a  later 
time,  king's  bench  and  exchequer,  an  offshoot  from  the 
judicial  function  of  the  small  council,  but  a  special  creation 
by  legislation,  or  what  served  at  the  time  as  legislation,  to 
render  the  benefits  of  the  new  procedure  accessible  at  all 
times.  For  a  long  time  it  was  the  only  central  common 
law  court.  The  council  as  a  court  of  law  never  adopted,  in 
either  of  its  forms,  great  council  or  small,  the  new  pro- 
cedure for  its  own  judicial  work,  and  the  two  offshoots  of 
the  council,  king's  bench  and  exchequer,  became  common 
law  courts  using  this  procedure  only  by  usurpation  and  after 
a  century  or  more.  The  legislative  action  which  established 
the  court  of  common  pleas  gave  an  impulse,  however,  to 
the  later  development.  It  provided  that  especially  difficult 
questions  arising  in  the  business  of  the  new  court  should  be 
referred  to  the  council  for  decision.  Such  references  in- 
creased and  helped  to  specialize  the  business  before  the  council 
known  as  coram  rege  business  which  led  in  a  later  differentia- 
tion to  the  court  of  king's  bench. 

A  further  outgrowth  of  the  new  system  was  not  intended 
in  the  minds  of  those  who  established  it,  but  has  been  of 
the  greatest  value  and  consequence  in  Anglo-Saxon  history 
—  the  common  law.  The  customary  law  which  had  grown 
up  in  the  local  courts  during  Saxon  times  was  full  of 
variations  and  differences  from  one  county  to  another  and 
this  fact  was  not  changed  even  when  the  feudal  law  had 
been  superimposed  upon  it,  a  law  in  its  main  features  common 
sStubbs,  S.  C,  155. 


110  CENTRALIZATION  AND  LAW 


everywhere  and  regulating  such  an  important  local  concern 
as  land  holding.  This  fact  was  noted  by  the  twelfth  century 
law  writers  though  they  could  have  no  conception  of  the 
future  which  lay  before  the  common  law.  They  could,  how- 
ever, perceive  the  fact  that  the  itinerant  justices,  going  from 
a  single  central  court  and  carrying  that  court  and  its  law 
into  every  county  in  turn,  were  making  a  common  law  for 
the  whole  kingdom.  Before  very  long  they  began  to  call  it, 
as  we  do,  the  common  law,  meaning  the  law  which  is  alike 
everywhere,  as  we  may  still  mean  through  the  whole  English 
speaking  world.  Before  very  long  also,  this  national  law 
had  absorbed  into  itself  what  was  best  in  the  local  law,  which 
slowly  disappeared.  This  result,  a  uniform  law  for  the 
kingdom,  was  in  a  negative  way  at  least  of  great  constitu- 
tional importance.  When  towards  the  end  of  the  middle 
ages  increasing  commerce  began  to  demand  a  law  which 
should  be  alike  everywhere,  England  could  satisfy  the  demand 
with  a  national  law  and  had  no  need  to  import  the  law  of 
imperial  Rome  with  its  absolutist  tendencies.  Later  still  in 
the  constitutional  struggle  of  the  seventeenth  century,  the 
firm  hold  of  the  common  law  upon  the  nation  was  a  strong 
bulwark  against  the  king. 

In  considering  the  sources  of  the  common  law  we  must 
distinguish  procedural  from  substantive  law.  The  new  ele- 
ments which  gave  rise  to  the  common  law  were  procedural, 
though  not  all  procedure  was  new.  The  impulse  came  when 
the  king  gave  to  the  community  a  new  set  of  courts,  a  new  way 
of  getting  the  defendant  into  court,  and  a  new  method  of 
proof,  all  changes  in  procedure.  Here  again  what  is  funda- 
mental in  the  process  of  change  is  itinerant  justice  court, 
writ  and  jury.  What  actively  led  to  the  creation  of  the 
common  law  was  the  new  judicial  system,  but  the  substantive 
law  out  of  which  the  common  law  was  made  was,  for  the 
time  being  at  least,  mostly  old  Saxon  local  law,  Norman 
local  law,  which  was  almost  identical  with  the  Saxon,  and 
feudal  law.     If  the  law  books  of  the  reign  of  Henry  I  show 


rn 


SOURCES  OF  THE  COMMON  LAW  111 

us  Saxon  law  and  feudal  law  standing  beside  one  another, 
hardly  mingling,  the  great  law  book  of  Henry  IPs  time, 
Glanvill,  shows  us  these  two  systems  of  law  being  moulded 
into  one  in  the  new  courts.  It  is  only  with  an  effort  that 
we  can  distinguish  old  from  new  in  that  book,  and  it  must 
be  done  by  historical  analysis ;  the  distincton  does  not  lie 
on  the  surface.  The  book  itself  shows  no  sign  of  anything 
but  a  common  law.  This  united  Whole  is  the  foundation  upon 
which  the  common  law  of  today  was  built.  The  immediately 
following  first  age  of  its  growth  was  a  development  of  the 
new,  not  of  the  old,  a  multiplication  of  writs  and  consequent 
classification  of  actions.  Also  it  is  interesting  to  note  that 
the  influence  of  the  judicial  decision  began  almost  immedi- 
ately to  be  felt  in  the  growth  of  the  law.  Bracton,  the 
second  great  writer  on  the  common  law,  two  generations 
after  Glanvill,  cites  some  five  hundred  decided  cases,  as  evi- 
dence of  what  the  law  is. 

But  the  common  law  is  not  the  only  important  distinction 
of  the  law  of  the  Anglo-Saxon  world.  The  legal  system 
which  we  call  "  equity  "  is  as  great  a  creation,  and  it  also 
had  its  beginning  along  with  the  common  law  —  not  as  a 
separate  system  but  in  the  simultaneous  introduction  and 
emphasis  of  the  principles  on  which  it  rests.  In  fact  if  we 
regard  the  principles  only  which  were  given  expression  in  the 
reforms  of  Henry  II,  it  would  be  more  accurate  to  say  that 
at  the  end  of  the  middle  ages  it  is  equity  which  rests  upon 
them,  or  expresses  them,  rather  than  the  common  lawv  In 
the  course  of  the  historical  development,  it  is  the  common 
law  which  departs  from  the  fundamental  principles  of  the 
twelfth  century,  and  equity  which  continues  to  abide  by 
them.  For  the  essential  thing  about  the  innovations  of 
Henry's  reign  is  what  later  characterizes  equity,  namely  that 
they  concerned  prerogative  institutions,  belonging  peculiarly 
to  the  king,  and  not  to  the  state  or  to  the  community,  opened 
to  general  use  by  the  grace  and  favor  of  the  king  to  provide 
better  and  surer  means  of  justice.     But  they  were  not  yet 


112  CENTRALIZATION  AND  LAW 

made  the  common  right  of  everybody.  They  must  be  asked 
for  in  eaeli  case  and  evidence  furnished  to  the  justices  that 
their  use  had  been  permitted,  though  the  petition  for  them 
was  always  to  be  granted. 

But  the  principles  of  the  royal  prerogative  which  underlay 
these  changes  were  really  wider  than  we  have  yet  noted,  and 
the  additional  point,  which  the  later  equity  system  empha- 
sized, was  also  of  great  importance  in  the  history  of  the 
constitution.  The  special  duty  of  the  king  to  secure  jus- 
tice for  all  men,  as  representing  the  divine  government  of 
the  world,  we  have  already  seen  influencing  the  development 
of  the  writ.  In  an  age  when  might  was  very  apt  to  call 
itself  right  with  few  to  oppose,  it  is  not  strange  that  men 
were  ready  to  carry  this  prerogative  of  the  king's  to  an 
extreme  and  to  see  in  it  a  protection,  not  a  danger,  to  the 
freedom  of  the  community.  And  so  they  said:  if  the  law 
itself,  through  human  lack  of  foresight  in  anticipating  every 
possibility,  sometimes  does  injustice,  if  it  fails  to  provide 
remedies  for  wrong  which  it  ought  to  provide,  or  to  protect 
every  right  which  it  ought  to  protect,  it  is  the  duty  of 
the  king  to  step  in  and  provide  the  remedy  or  protect  the 
right,  the  law  to  the  contrary  notwithstanding.  The  king 
is  above  the  law.  He  may  overrule  and  override  the  law 
to  secure  justice.  It  is  a  survival  of  this  prerogative  in 
its  original  form  which  we  still  have  in  the  right  of  the 
executive  to  pardon  a  condemned  criminal.  The  twelfth 
century  saw  only  good  in  this  principle  and  did  not  foresee 
what  use  the  later  kings  could  make  of  it  in  their  struggle 
against  the  limiting  constitution. 

-•-.  Therefore,  when  by  the  end  of  the  thirteenth  century  the 
common  law  had  begun  to  insist  upon  hard  and  fixed  forms 
for  its  procedure,  and  to  declare  that  rights  were  strictly 
defined  and  limited  by  the  exact  terms  of  the  written  con- 
tract, men  had  no  recourse  but  to  say  that  the  king  could 
interfere,  by  virtue  of  his  duty  and  his  prerogative  power 
to  secure  justice,  and  set  right  the  wrongs  which  a  strict 


EARLY  STAGES  OF  EQUITY       113 

adherence  to  the  common  law  would  sanction.  This  has 
seemed  to  us  something  like  a  new  beginning  in  the  reign 
of  Edward  I  because  written  records  had  become  by  that 
time  so  much  more  frequent,  and  the  records  themselves 
so  much  better  preserved,  that  it  looks  as  if  many  things  . 
were  happening  for  the  first  time  which  really  had  been 
going  on  for  a  long  time.  What  really  is  new  in  that  '  \ 
age  is  the  hardening  of  the  common  law  into  fixed  forms 
which  it  is  itself  powerless  to  change.  What  is  old  is  the 
continued  powrer  of  the  king  and  his  council  —  the  organ 
through  which  he  acts  —  to  interpose  in  the  common  law 
to  secure  justice  not  allowed  by  its  forms.  When  the  king 
acted  thus  at  the  end  of  the  thirteenth  century,  he  was 
doing  the  same  thing  in  principle  that  he  did  at  the  end 
of  the  twelfth,  when  he  established  by  prerogative  action 
new  courts  and  procedure,  not  provided  for  by  the  tradi- 
tional law  of  the  land,  because  they  would  secure  justice  to 
the  community  in  a  simpler  and  more  certain  way. 

The  development  of  equity  into  a  great  system  of  law 
came  at  a  later  time,  but  in  its  earliest  stages  its  historical 
development  was  foreshadowed  and  some  of  its  present  day 
forms  were  established.  As  a  suit  at  the  common  law  must 
open  with  a  writ,  so  must  the  suit  in  equity  with  a  petition  — 
a  petition  to  the  king  to  interfere  because  justice  cannot 
otherwise  be  secured.  The  petition  was  addressed  almost 
always  to  the  king  and  his  council,  because  the  council  was 
the  organ  of  the  king's  prerogative  action,  and  the  develop- 
ment of  the  equity  system,  and  of  equity  or  chancery  courts, 
is  a  phase  of  differentiation  from  the  council  independent 
of  that  seen  in  the  common  law  courts.  It  must  be  remem- 
bered, however,  that  in  the  history  of  law  the  difference  of 
equity  from  the  common  law  in  procedure  and  courts  is  not 
so  important  as  the  difference  in  the  rights  protected  and 
the  remedies  afforded. 

These  beginnings  of  change  in  the  judicial  system  are 
closely   associated   also   with   the   beginnings   of   change   in 


114  CENTRALIZATION  AND  LAW 

two  of  the  great  offices  of  the  state.  The  justiciar  had 
been  in  the  first  Norman  century  a  special  king's  justice; 
the  siimmus  or  capitalis  justiciar,  the  chief  justiciar,  had 
been  the  special  representative  of  the  king,  sometimes  a 
kind  of  prime  minister,  or  something  like  the  later  regent 
during  the  king's  absences  from  the  country.  Now  as  there 
began  to  be  king's  courts  constantly  in  session  and  a  per- 
manent bench  of  king's  justices,  and  as  the  ministerial 
duties  of  the  office  began  to  be  provided  for  in  other  ways, 
it  lost  its  importance  and,  from  a  time  soon  after  the  middle 
of  the  thirteenth  century,  it  disappeared.  The  history  of 
the  chancellor's  office  is  quite  different.  Originally  the  head 
of  the  king's  chapel  or  chaplains,  he  had  practically  noth- 
ing to  do  with  judicial  matters.  But  the  king's  chaplains 
were  at  the  same  time  his  private  secretaries  who  put  his 
letters  into  form  and  took  charge  of  petitions  addressed  to 
him.  With  the  great  development  of  the  writ,  which  was 
a  royal  letter,  and  the  increasing  emphasis  placed  upon  its 
forms,  the  chancellor's  office,  the  chancery,  where  the  writs 
were  made,  was  brought  into  immediate  contact  with  the  new 
judicial  system  and  its  importance  greatly  increased.  It 
was  increased  still  further,  somewhat  later,  as  the  more  fre- 
quent use  of  petitions  opened  up  the  great  possibilities  of 
the  field  of  equity  jurisprudence.  Upon  these  foundations 
were  built  in  course  of  time  the  high  rank  and  great  prac- 
tical power  of  the  office  of  lord  chancellor. 

The  changes  which  we  have  so  far  been  considering  con- 
cern the  growth  of  civil  law,  but  during  the  same  time 
changes  affecting  criminal  law  and  criminal  trials  were  tak- 
ing place  of  equal  importance  and  permanence.  In  the  re- 
pression of  crime,  the  peculiar  difficulty  of  that  age  was 
finding  out  who  committed  the  crime  and  getting  him  arrested 
ard  before  the  court  for  trial.  The  aim  of  the  new  pro- 
cedure was  to  overcome  this  difficulty  and  at  the  same  time 
to  furnish  a  more  trustworthy  method  of  trying  the  accused. 
Both  these  purposes  were  accomplished  by  a  single  change, 


NEW  CRIMINAL  PROCEDURE  115 

by  the  introduction  of  what  we  know  as  the  grand  jury. 
The  new  institution  was  not  exactly  the  grand  jury  of 
our  day.  It  was  not  "  grand,"  for  there  was  then  no  petty 
jury;  the  accusing  jury  was  drawn  not  from  the  county* 
but  a  separate  one  from  each  subdivision  of  the  county ; 
it  acted  usually  upon  its  own  knowledge,  not  from  evidence 
put  before  it  by  public  officers ;  its  action  was  also  not  a  mere 
accusation  to  be  followed  by  the  real  trial,  but  it  was  an 
essential  part  of  the  trial  itself. 

In  practical  operation  the  new  criminal  procedure  was 
closely  connected  with  the  new  itinerant  justice  system. 
Undoubtedly  one  of  the  chief  reforms  which  Henry  II  de- 
sired in  making  the  circuit  court  a  regular  feature  of  the 
constitution  was  to  bring  the  local  knowledge  of  the  com- 
munity in  which  the  crime  had  been  committed  to  bear  upon 
the  punishment  of  the  criminal.10  As  we  have  already  seen 
one  of  the  first  duties  of  the  justices  on  coming  into  the 
county  was  to  get  the  local  juries  appointed,  and  these  were 
obliged  on  their  oath  to  inform  the  justices  of  all  pleas 
of  the  crown,  that  is,  criminal  cases,  which  should  be  tried. 
In  the  document  which  gives  us  our  first  definite  information 
about  the  new  method  of  trial,  it  is  said  that  the  king  and 
the  great  council  have  enacted  that  inquiry  should  be  made 
by  means  of  the  jury  "  upon  their  oath  that  they  will  tell 
the  truth  whether  there  is  in  their  hundred  or  in  their  vill 
any  man  who  has  been  accused  or  publicly  suspected  of  him- 
self being  a  robber,  or  murderer,  or  thief,  or  of  being  a 
receiver  of  robbers,  or  murderers,  or  thieves,  since  the  lord 
king  has  been  king."  ai  If  it  was  found  out  that  the  jury  had 
failed  to  accuse  some  one  who  was  suspected  of  crime,  the 
members  of  it  were  heavily  fined.  In  times  when  crimes  of 
violence  were  frequent  and  likely  to  go  unpunished  through 
fear  or  favor,  it  was  an  admirable  system  for  enforcing  order 
and   strengthening   the   hands    of   the   central   government. 

io  Penn.  I.,  6,  30-31. 

11  Stubbs,  S.  C,  170;  A.  and  S.,  14. 


116  CENTRALIZATION  AND  LAW 

Indeed  to  this  day  we  have  found  nothing  better,  though 
increase  in  population  and  in  the  complexity  of  life  has 
modified  some  details  of  operation. 

In  the  new  criminal  trial  all  that  part  of  the  old  procedure 
which  went  before  the  ordeal  was  swept  away.  Appeal,  fore- 
oath,  compurgation,  had  no  place  in  it.  The  sworn  jury 
was  a  far  better  method  of  getting  at  the  public  opinion  of 
the  community  as  to  who  was  guilty  of  a  crime  than  the 
crude  method  of  the  older  trial,  and  the  verdict  of  the  jury, 
as  expressing  that  opinion,  was  taken  as  putting  the  accused 
in  the  position  where  all  had  gone  against  him,  leaving  no 
chance  of  escape  but  through  the  ordeal.  This  last  chance 
of  proving  his  innocence  was  allowed  to  the  accused,  until 
the  church  forbad  the  use  of  the  ordeal  in  1216.  Then  after 
long  experimenting  to  find  the  best  method  of  allowing  the 
accused  a  last  chance,  the  practice  became  established  of 
asking  a  second  jury,  the  petty  jury,  to  pass  upon  the  ver- 
dict of  the  first.  The  new  method,  the  petty  jury  with  the 
grand  jury,  as  an  accusing  jury  from  the  whole  county, 
became  established  in  use  soon  after  the  middle  of  the  four- 
teenth century. 

Some  of  the  changes  which  we  have  been  considering  were 
the  result  of  natural  growth,  like  the  formation  of  the  com- 
mon law,  while  others  we  know  to  have  been  brought  about 
by  deliberate  acts  of  legislation.  The  word  "  assize "  in 
those  days  bore  the  meaning  of  a  legislative  act  as  one  of 
its  meanings,  and  we  may  judge  the  five  assizes  to  have 
been  established  in  that  way,  though  we  can  assign  no 
specific  date  to  them,  except  with  some  confidence  the  date 
1179  to  the  grand  assize.  Some  of  them  very  likely  go 
back  of  Henry's  reign  into  his  father's  time  or  Stephen's. 
References  to  the  assize  Utrum  in  1164  and  to  the  assize 
of  Novel  disseisin  in  1166,  seem  to  imply  that  both  were  well 
known   at  these  dates. 

Apart  from  these  assizes,  a  remarkable  series  of  docu- 
ments has  come  down  to  us  from  the  reign,  some  of  them  we 


REMARKABLE  DOCUMENTS  117 

believe  to  be  legislative  enactments  in  almost  the  form  in 
which  they  were  originally  made.12  The  Constitutions  of 
Clarendon  of  1164?  have  already  been  mentioned,  containing 
statements  of  what  purports  to  be  early  law  on  many  points. 
The  Assize  of  Claremdon  of  1166  is  an  act  of  legislation 
concerning  especially  the  new  criminal  procedure  which  has 
been  described  and  the  itinerant  justice  courts.  The  Inquest 
of  Sheriffs  of  1170  has  rather  the  form  of  a  commission  to 
itinerant  justices  directing  an  inquiry  into  the  abuse  of 
their  power  by  sheriffs  and  local  magnates,  and  it  shows  in 
a  striking  way  how  the  new  courts  held  the  royal  officers 
under  a  strict  control  and  served  as  a  most  efficient  instru- 
ment of  centralization.  The  Assize  of  Northampton  of  1176 
is  a  revision  of  the  Assize  of  Clarendon  and  further  de- 
velops both  the  criminal  procedure  and  the  itinerant  justice 
system.  A  chronicler  of  the  time,  especially  familiar  with 
institutional  matters,  records  that  further  regulations  con- 
cerning the  itinerant  justices  and  courts  were  made  in  1178 
and  1179,  but  documentary  records  of  what  was  done  at 
these  dates  have  not  been  preserved.  The  Assize  of  Arms 
of  1181  is  a  provision  regarding  the  military  force  of  the 
kingdom  and  the  arms  which  were  to  be  kept  by  knights  and 
free  men  for  service  in  war.  It  assumed  that  every  free 
man  might  be  called  to  serve  the  state  in  war  and  it  was  used 
as  a  model  for  many  later  acts  on  the  same  subject. 

Besides  these  documents,  two  very  interesting  books  have 
been  preserved  to  us,  both  probably  written  in  the  last 
decade  of  Henry's  life,  and  both  concerning  the  institutions 
of  the  time.  Their  authors  were  men  thoroughly  familiar, 
evidently  from  personal  observation,  with  the  institutions 
they  describe.  The  Dialogue  of  the  Exchequer,  was  written 
by  Richard,  son  of  Nigel,  treasurer  of  England  and  of  a 
family  long  officially  connected  with  the  exchequer.  It  is 
in  the  form  of  a  dialogue  between  a  master  and  his  pupil,  and 
gives  a  detailed  description  of  the  financial  system  of   the 

izstubbs,  8.  C,  161-184;  A.  and  S.,  11-25. 


118  CENTRALIZATION  AND  LAW 

time  and  of  the  exchequer  method  of  getting  in  the  revenue 
and  keeping  an  account  of  it.13  The  book  which  bears  the 
name  of  Glanvill,  one  of  the  leading  justices  of  the  new 
courts,  has  already  been  referred  to  and  cannot  be  better 
described  in  a  word  than  as  opening  worthily  the  great 
series  of  works  on  English  law,  Bracton,  Littleton,  For- 
tescue,  Coke,  and  Blackstone.  It  is  entitled  Tractatus 
de  Legibus  et  Consuetudinibus  regni  Anglie,Xi  and  it  deals 
in  full  with  the  new  system  of  law  which  the  new  courts 
were  bringing  into  an  organic  whole,  the  future  common  law, 
and  it  gives  us  much  information  of  other  things  by  the  way, 
as  does  also  the  Dialogus. 

How  far  these  changes,  which  produced  permanent  results 
of  such  great  consequences  in  law  and  judicial  institutions, 
and  which  bad  fair  at  first  to  lead  to  consequences  much 
more  momentous  in  constitutional  histor}7,  were  due  to  the 
initiative  and  foresight  of  the  king  we  cannot  say.  In  the 
management  of  political  affairs,  in  reference  to  the  pressing 
problems  of  working  his  wide  dominions  together  into  a 
single  state,  he  shows  himself  thoroughly  a  man  of  his  own 
time,  with  no  clear  foresight  of  the  future  and  in  this  re- 
spect distinctly  inferior  to  his  rival  Philip.  Augustus  of 
France.  But  in  his  government  of  England  he  seems  in- 
stinctively to  have  grasped  from  the  beginning  both  the  great 
problem  to  be  solved  of  order  and  strong  government,  and 
the  best  means  to  attain  the  desired  end.  Whoever  may  have 
pointed  out  or  suggested  the  new  steps  that  were  taken,  they 
could  hardly  have  been  taken  at  all  or  maintained  without 
the  support  of  the  king,  and  that  support  was  steadily  forth- 
coming from  the  first  day  of  his  reign  without  a  break  to 
the  end.  From  a  state  whose  government,  to  some  extent 
at  least,  had  fallen  into  disorder,  which  certainly  as  a 
machine   could   not  have   run   by   itself  in   orderly   security 

is  Extracts  in  Stubbs,  8.  C,  199-241;  translation  in  full  in  Henderson, 
Historical  Documents  of  the  Middle  Ages,  20-134. 
"Extracts  in  Stubbs,  S.  C,  190-195. 


INFRINGEMENT  OF  BARONIAL  RIGHTS      119 

without  the  strong  hand  of  the  king,  England  came  to  be  at 
the  end  of  his  life  a  realm  of  unusual  safety  of  life  and 
property,  with  government  machinery  so  firmly  established 
that  it  could  run  alone,  and  a  body  of  officials  so  well  trained 
that  they  could  act  without  the  king. 

Such  a  result  could  not  be  attained  in  that  day  without 
methods  that  were  to  some  extent  revolutionary  and  in  this 
fact  lay  the  possibility  of  a  greater  revolution.  Henry  II 
had  established  a  strong  government.  He  had  set  up 
machinery  of  centralization  unparalleled  in  his  day.  He  had 
gone  far  towards  transforming  an  absolute  government 
which  existed  in  habit  and  custom  only  into  one  firmly  fixed 
in  the  constitution  of  the  state.  He  might  well  believe  that 
his  work  would  be  permanent,  that  his  new  constitution 
would  in  its  turn  become  habitual  and  customary,  and  that 
even  more  "surely  than  in  the  past  there  would  be  no  oppor- 
tunity in  the  state  for  any  will  to  express  itself  in  opposi- 
tion to  the  king's.  But  in  doing  his  work  he  had  overridden 
unsparingly  rights,  well  defined  in  the  law,  which  belonged 
to  the  feudal  baronage.  It  was  not  merely  that  such  a 
steadfast  centralization  would  seem  a  constant  threat  to  a 
baronage  not  inclined  to  be  controlled,  nor  that  the  over- 
whelming power  of  the  crown  would  be  a  constant  tempta- 
tion to  a  king  less  scrupulous  than  Henry  to  further  arbi- 
trary acts  in  conflict  with  his  barons  or  in  fear  of  what  they 
might  do.  It  was  an  even  more  decisive  element  in  the 
future  that  Henry  had  not  been  able  to  create  his  machinery 
without  the  actual  infringement  of  property  rights  belong- 
ing to  the  barons.  If  his  machinery  was  to  be  permanent, 
the  private  jurisdiction  of  the  baron  over  his  vassals,  with 
all  its  advantages  in  income  and  consideration,  was  at  an 
end,  as  indeed  it  was  after  but  little  more  than  a  century. 
That  the  baronage  in  Henry's  own  time  had  any  understand- 
ing of  these  ultimate  results,  or  was  opposed  to  his  inno- 
vations, as  we  should  expect  them  to  be,  we  do  not  know. 
The  great  feudal  insurrection  of  1173-4,  certainly  had  some 


120  CENTRALIZATION  AND  LAW 

general  underlying  cause,  but  we  do  not  know  what  it  was. 
It  was  only  in  another  generation,  so  far  as  we  can  tell,  that 
the  tendencies  of  Henry's  constitution  were  clearly  seen  and 
limits  set  to  the  use  of  the  royal  power. 

Bibliographical  Note. —  G.  B.  Adams,  The  Origin  of  the 
English  Constitution,  1920;  The  Origin  of  English  Equity, 
Columbia  Law  Review,  xvi,  87,  1916.  M.  M.  Bigelow,  The  His- 
tory of  Procedure,  1880.  H.  Hall,  Court  Life  under  the  Plant- 
agenets,  1890.  C.  H.  Haskins,  Norman  Institutions,  1918.  R. 
L.  Poole,  The  Exchequer  in  the  Twelfth  Century,  1912.  F.  M. 
Powicke,  The  Loss  of  Normandy,  1913.  J.  B.  Thayer,  Evidence 
at  the  Common  Law,  Pt.  1,  1896. 


CHAPTER  V 
THE  GREAT  CHARTER 

The  staying  power  of  Henry's  constitution,  its  ability  to 
sustain  itself  without  the  supporting  presence  of  the  king, 
was  soon  brought  to  the  test.  Richard  I,  who  came  to  the 
throne  on  his  father's  death  in  1189,  was  not  interested  in 
the  problems  of  government  and  was  not  interested  in  Eng- 
land. While  his  elder  brother  lived  he  had  been  destined 
to  be  duke  of  Aquitaine  and  he  had  spent  all  his  youth  in 
that  stormy  province.  His  experiences  there  and  the  train- 
ing he  received  strengthened  the  bent  which  was  perhaps 
natural  to  him  towards  the  military  life  of  the  time  and 
the  daily  fighting  of  the  feudal  age  then  at  its  height.  After 
he  became  king  he  visited  England  only  twice  for  a  short 
time  on  each  occasion,  but  spent  all  his  time  either  on  the 
crusade  or  in  his  constant  struggle  with  the  king  of  France 
for  supremacy  on  the  continent.  The  institutions  of  Eng- 
land were  left  to  run  themselves,  or  rather  left  to  the  care 
of  officers  who  had  been  trained  in  the  school  of  Henry  II, 
who  carried  them  on  in  the  spirit  of  that  reign.  The 
new  judicial  system  was  so  well  founded  that  it  needed  no 
special  care  and  it  may  be  left  with  the  statement  that  it 
continued  along  lines  of  natural  growth  to  the  date  of  the 
granting  of  the  Great  Charter. 

The  advance  which  was  new  to   this   period  was   on   the 

financial   side  in  the  first  steps   towards  national   taxation. 

In  general  the  sources  of"  income  for  the  state  remained  in 

the  last  decade  of  the  twelfth  century  what  they  had  been 

a   hundred   years   earlier.     Coined   money   had  been    slowly 

coming  into  more  frequent  use,  and  payments  in  kind  had 

121 


122  THE  GREAT  CHARTER 

been  in  many  cases  transformed  into  money  payments.  The 
money  income  of  the  state  had  also  been  increased  during 
the  century  by  another  commutation  which  goes  back  at 
least  to  the  time  of  Henry  I,  a  payment,  called  scutage, 
made  by  the  feudal  tenant  in  lieu  of  the  military  service 
which  he  owed.  It  is  probable  that  the  difficulties  and  ex- 
pense of  campaigns  in  France,  so  often  necessary,  led  to  an 
early  development  in  England  of  the  use  of  hired  troops  and 
to  money  payments  by  knights  in  lieu  of  their  personal  serv- 
ice. At  any  rate  from  about  the  middle  of  the  twelfth  cen- 
tury so  long  as  the  feudal  system  remained  the  chief  depen- 
dence of  the  state  for  an  army,  scutage  continued  to  be  an 
important  payment  to  the  state.  None  of  these  sources  of 
income,  however,  was  of  the  nature  of  a  national  tax. 

From  the  Saxons,  as  we  have  seen,  the  Normans  inherited 
the  Danegeld  which  was  something  like  a  general  tax  on  land. 
This  was  occasionally  levied  by  William  I  and  William  II, 
and  in  the  last  part  of  the  reign  of  Henry  I  regularly, 
almost  like  an  annual  tax.  It  fell  out  of  use  again  under 
Stephen  and  was  revived  by  Henry  II  at  least  for  occa- 
sional use.  If  we  trust  to  the  positive  evidence  which  we 
have,  this  is  all  that  we  can  say,  but  the  character  of  our 
evidence  is  such  that  we  suspect  the  tax  was  through  the  whole 
period  in  more  regular  use  than  directly  appears.  Certainly 
we  may  say  that  this  form  of  land  tax,  somewhat  trans- 
formed, was  one  of  the  sources  out  of  which  national  taxa- 
tion arose  in  the  thirteenth  century. 

Another  source  of  income  was  new  in  the  generation  im- 
mediately preceding  Richard,  the  general  tax  in  support  of 
a  crusade.  It  was  suggested  in  part,  it  is  likely,  by  the 
universal  tithe  payable  to  the  church,  for  the  crusade  was 
an  undertaking  especially  of  the  church,  and  in  part  by  the 
vassal's  "  aid  "  for  the  crusade  of  the  lord,  which  was  not 
uncommon  in  France,  and  it  was  first  imposed  in  that  country 
in  1146.  In  1166  Henry  II  followed  the  French  example  in 
a  similar  tax  throughout  his  dominions,  and  again  in  1184 


FIRST  GENERAL  TAX  123 

or  1185.  The  famous  instance,  however,  which  may  be  said 
to  have  fixed  the  practice  as  the  beginning  of  the  direct  taxes 
of  the  modern  state  upon  personal  property  and  income, 
as  distinguished  from  a  land  tax,  was  the  "  Saladin  tithe  " 
of  1188.1  These  taxes  were  the  first  instances  of  general 
taxes  laid  by  the  great  council  to  be  paid  by  all  classes. 
The  Saladin  tithe  was  to  be  collected  in  each  parish  by  a 
mixed  ecclesiastical  and  lay  commission,  and  in  case  of  a 
disagreement  as  to  the  amount  of  tax  to  be  paid  by  any  per- 
son a  local  jury  was  to  decide  —  a  use  very  like  that  of  the 
primitive  jury  and  widely  imitated  in  the  following  hundred 
years  in  taxation  by  the  state. 

It  was  not  long  before  the  government  had  to  put  into 
use  for  its  own  needs  all  the  new  means  of  raising  revenue  for 
in  1193-4  money  had  to  be  collected  to  pay  £100,000  to 
the  Emperor  for  the  ransom  of  Richard,  an  enormous  sum 
for  the  resources  of  those  days.2  Nearly  thirty  years  ago 
Maitland  wrote :  '*  Historians  have  not  as  yet  succeeded  in 
determining  very  precisely  the  nature  and  extent  of  all  the 
various  imposts  which  had  been  exacted  for  the  purpose  of 
raising "  this  ransom,  and  we  must  say  the  same  today. 
A  few  things  only  seem  certain.  Taxes  were  laid  on  the 
kingdom  at  three  different  dates,  the  first  proving  insufficient. 
There  were  also  at  least  three  different  kinds  of  taxes. 
There  was  a  tax  on  military  fees  called  a  scutage,  or  some- 
times an  aid,  but  evidently  the  former  since  exemptions  were 
allowed  for  services  abroad  with  the  king.  There  was  a 
different  tax  on  land  called  a  hidage  or  a  carucage,  sup- 
posed by  some  to  have  been  on  land  not  held  by  military 
tenure;  and  there  was  a  personal  property  and  income  tax 
like  the  Saladin  tithe.  There  is  mentioned  in  this  connection 
also  for  the  first  time  what  was  to  be  for  some  generations 
a  principal  source  of  revenue,  for  we  are  told  that  one  year's 
crop   of   the   wool   of   the   Cistercian   order   was    taken.     In 

iStubbs,  S.  C,  188-189;  A.  and  S.,  27-28. 
»  Stubbs,  S.  C,  245-246. 


124  THE  GREAT  CHARTER 

the  development  of  taxation,  however,  the  chief  matter  is 
the  transfer  to  the  uses  of  the  state  of  the  personal  property 
and  income  tax  begun  for  the  crusades.  There  is  loud  com- 
plaint in  the  chroniclers  of  the  heavy  burden  of  this  taxa- 
tion, but  it  is  evident  that  England  was  a  rich  country  with 
strong  reserves  of  wealth.  The  stern  government  of  the 
Anglo-Norman  monarchy  repressed  disorder  and  civil  war 
and  rendered  possible  the  accumulation  of  property  and 
forms  of  industry,  like  sheep  raising,  which  could  not  be 
maintained  without  internal  security.  England  continued, 
however,  for  a  long  time  to  be  a  country  whose  wealth  and 
taxing  resources  depended  upon  the  production  not  of  manu- 
factured goods,  but  of  raw  materials. 

In  1198  another  forward  step  was  taken;  the  method  of 
assessing  a  tax  by  sworn  representatives  of  the  locality  was 
transferred  from  the  personal  property  to  the  land  tax.8 
A  tax  of  five  shillings  was  laid  on  the  carucate,  or  plough- 
land,  and  the  commissioners  appointed  to  levy  the  tax  fixed 
a  uniform  measure  of  one  hundred  acres  for  the  carucate. 
As  in  the  Domesday  survey  it  was  a  county  court  which  was 
called  to  meet  them  but  the  tax  was  assessed  in  each  vill 
by  its  reeve  and  four  men,  assisted  by  two  elected  knights 
for  the  hundred.  With  this  tax  the  machinery  for  the 
assessment  and  collection  of  taxes  which  was  employed  for 
the  next  century  with  minor  variations  had  been  put  into 
form.  In  this  machinery  the  use  of  local  representatives  in 
a  national  service  should  not  be  overlooked  and  in  a  function 
closely  related  to  that  of  the  jury.  The  possible  bearing  of 
this  practice  upon  the  addition  of  local  representatives  to 
the  great  council,  that  is  upon  the  origin  of  parliament,  we 
shall  have  to  consider  later. 

Notwithstanding   his    taxation,    excessive    for    that    time, 
Richard  was  constantly  in  want  of  money.     He  raised  large 
sums  by  the  extensive  sale  of  offices,  exemptions  and  privi- 
leges.    At  the  end  of  1197  an  incident  occurred  which  has 
»  Stubbs,  8.  C,  249-251 ;  cf.  277-279,  and  A.  and  S.,  35-36. 


CULMINATION  OF  ABSOLUTISM  125 

sometimes  been  given  an  exaggerated  importance.  In  place 
of  the  usual  feudal  lev}',  Richard  called  upon  the  barons  to 
furnish  three  hundred  knights  for  a  year's  service  in  France.4 
In  the  great  council  which  considered  the  request,  the 
bishops  of  Lincoln  and  Salisbury  refused,  asserting  incor- 
rectly that  their  fiefs  were  not  liable  to  service  outside  of 
England,  and  the  plan  failed.  The  details  of  the  incident 
are  difficult  to  understand  but  at  most  we  can  see  in  it  no 
more  than  a  growing  disposition  to  watch  the  king's  conduct 
and  to  insist  that  it  shall  be  strictly  legal.  It  may  be  re- 
garded as  the  sign  of  the  coming  revolution  which  secured 
Magna  Carta,  but  not  as  a  step  in  the  development  of  con- 
sent to  taxation. 

The  Anglo-Norman  absolutism,  strengthened  greatly  by 
the  centralizing  measures  of  Henry  II,  reached  its  culmina- 
tion in  the  reign  of  John.  The  Christian  states  of  western 
Europe  for  six  hundred  years  after  Charlemagne's  death 
afford  no  example  of  a  power  so  unlimited  and  so  unshakable 
as  his  in  England.  For  years  he  resisted  the  determined 
attack  of  the  most  powerful  of  medieval  popes,  Innocent  III, 
with  a  highly  organized  church  behind  him,  with  no  apparent 
weakening  of  his  authority.  The  growing  opposition  of  the 
English  barons  added  to  that  of  the  church  was  not  able 
to  force  him  to  yield  in  the  least  until  a  great  French  army 
was  on  the  point  of  invading  England  with  the  sanction  of 
the  pope.5  Then  John  suddenly  yielded  but  with  such  skill 
in  the  form  of  his  yielding  as  to  bring  the  pope  over  to  his 
side  and  to  compel  him  to  serve  as  his  protector  both  against 
France  and  against  the  English  barons.  He  became  the 
vassal  of  the  pope  and  made  England  a  papal  fief  with  his 
feudal  services  limited  to  a  rent  charge  of  one  thousand 
marks  per  year.6 

For  a  time  it  seemed  as  if  the  king  had  survived  the  crisis. 

*  Stubbs,  8.  C,  249-250. 
»  Stubbs,  S.  C,  270-273. 
«.  Stubbs,  S.  C,  277-279;  A.  S.,  38-3?,. 


126  THE  GREAT  CHARTER 

without  loss  of  power,  but  signs  of  approaching  open  oppo- 
sition began  to  multiply  rapidly.  His  plan  to  carry  the 
army  which  he  had  c'ollected  to  defend  England  over  to 
attack  the  king  of  France  on  the  continent  failed  because 
the  barons  refused  to  go,  and  some  of  them  declared  that 
their  feudal  obligations  did  not  compel  them  to  serve  out  of 
England.  In  intense  anger  the  king  set  out  to  punish  them 
for  their  disobedience  but  was  checked  by  Stephen  Langton, 
archbishop  of  Canterbury,  who  reminded  him  of  his  recent 
oath  to  keep  good  laws  and  that  he  could  not  punish  any 
baron  without  a  sentence  of  his  court.  In  that  oath,  sworn 
at  the  time  of  his  absolution  from  the  papal  excommuni- 
cation, 'he  had  promised  to  restore  the  good  laws  of  his 
ancestors  especially  the  laga  Edwardi,  the  law  of  Edward 
the  Confessor.  Probably  no  one  knew  what  the  law  of  Ed- 
ward was,  and  the  phrase  was  very  possibly  borrowed  directly 
from  the  coronation  charter  of  Henry  I,  but  it  would  mean 
to  all  who  heard  it  a  going  back  from  the  innovations  of  his 
father,  where  they  had  led  to  unjust  applications,  to  an 
earlier  system   of  law  considered  to  be  less  tyrannical. 

What  the  leaders  of  the  opposition  seem  really  to  have 
been  doing  was  to  try  to  find  some  basis  in  the  past  on  which 
the  arbitrary  action  of  the  king  could  be  legally  limited. 
Apparently  some  of  them  thought  of  using  the  great  coun- 
cil in  some  way,  or  the  coronation  oath,  or  a  reenactment  of 
the  charter  of  Henry  I.  It  was  the  latter  probably  which 
suggested  the  principle  upon  which  they  did  act  —  the  fun- 
damental feudal  contract.  Underlying  all  the  practices, 
law  and  institutions  of  feudalism  was  the  fact  of  contract, 
binding  lord  and  vassal  alike,  not  to  quite  the  same  things 
but  equally.  Of  the  feudal  services,  for  instance,  by  which 
the  public  business  was  carried  on,  the  king  could  not  de- 
mand of  the  vassal  without  his  consent  further  money  pay- 
ments than  those  specified  by  law  or  custom,  nor  more  mili- 
tary service,  nor  in  different  conditions  of  time  or  place,  nor 
infringe  his  rights  of  private  jurisdiction,  nor  subject  him  to 


OPPORTUNITY  OF  THE  BARONS  127 

a  different  mode  of  trial  from  the  usual  feudal,  much 
less  punisli  him  without  trial  no  matter  what  he  had  done.  If 
we  cannot  prove  that  John  had  actually  been  guilty  of  each 
of  these  breaches  of  contract,  it  is  at  least  true  that  the 
barons  declared  and  evidently  believed  that  he  had  been. 
His  worst  oppressions  of  which  we  are  sure  were  the  arbi- 
trary punishment  of  individuals  and  the  extortion  of  large 
sums  of  money  from  them  when  opportunity  offered.  His 
scutages  also,  which  had  been  collected  almost  like  an  an- 
nual land  tax,  had  gone  in  some  cases  beyond  his  feudal 
rights  and  had  been  increasingly  heavy  in  amount.  In  a 
more  general  sense  the  reforms  of  Henry  II,  although  they 
were  of  great  advantage  to  the  state  and  the  foundations 
of  future  progress,  as  we  can  see  plainly  enough,  seemed 
to  the  barons  dangerous  attacks  upon  their  property  and 
rights,  and  for  this  feeling  they  had  some  ground  in  feudal 
law. 

The  opportunity  came  to  the  barons  through  the  defeat 
of  the  king  and  of  the  combination  of  allies  which  he  had 
formed  against  Philip  of  France  in  the  great  battle  of 
Bouvines,  27  July,  1214.  John  was  forced  to  make  peace 
with  France  in  September,  but  in  October  he  returned  to 
England  evidently  determined  to  maintain  all  his  authority 
there,  and  he  at  once  demanded  a  scutage  for  the  campaign 
which  had  just  closed.  The  barons  on  their  side  determined 
to  resist ;  they  seem  to  have  formed  a  confederation,  proba- 
bly bound  by  an  oath,  decided  to  make  the  charter  of 
Henry  I  the  basis  of  their  claims,  and  agreed  to  meet  after 
Christmas  to  present  their  demands  to  the  king  with  the 
alternative  of  civil  war  if  he  refused  them.7  Their  meeting 
was  in  January  in  London.  John  asked  for  delay  until  the 
end  of  April  which  was  granted,  but,  alarmed  by  his  prepar- 
ations against  them,  the  barons  took  the  field  before  the  time 
had  expired.  Two  months  were  occupied  with  negotiations 
and  with  aggressive  action  by  the  barons:  the  formal 
t  Stubbs,  S.  C,  273-274. 


128  THE  GREAT  CHARTER 

diffidatio  which  the  feudal  law  required  the  vassal  to  send 
his  lord  if  he  was  going  to  make  war  upon  him  in  defense  of 
his  rights,  and  the  occupation  of  London  on  May  17. 
Finally  the  terms  of  a  formal  recognition  of  the  barons' 
rights  were  agreed  upon,  and  the  document  in  which  they 
were  formulated,  Magna  Carta,  the  Great  Charter,  was 
agreed  to  by  the  king  on  June  15,  at  Runnymede,  near 
Staines,  between  London  and  Windsor.8 

It  has  been  said  that  the  importance  of  Magna  Carta 
can  hardly  be  exaggerated.  The  truth  of  the  statement  de- 
pends upon  how  the  Charter  is  regarded.  If  it  be  regarded 
as  a  document  of  contemporary  law,  interpreted  as  it  would 
be  by  those  who  drew  it  up  and  going  no  farther  than  their 
political  and  constitutional  ideas  could  go,  its  importance 
can  easily  be  exaggerated  and  has  been  often.  Nearly 
every  right  claimed  in  it  was  recognized  in  the  contemporary 
law  of  France  and  of  most  continental  states,  but  constitu- 
tional results  followed  in  England  only.  If  it  be  considered 
as  the  beginning  of  a  tendency,  as  the  first  stage  in  a  process 
of  growth  which  has  gone  on  without  a  break  from  that  day 
to  this,  then  it  is  hardly  possible  to  exaggerate  its  impor- 
tance, even  if  we  say  that  it  is  the  most  important  constitu- 
tional document  of  all  human  history.  To  arrive  at  a  clear 
understanding  of  the  document  and  of  just  what  it  accom- 
plished, we  must  keep  these  two  ways  of  looking  at  it  as  dis- 
tinct from  one  another  as  possible. 

It  was  not  the  intention  of  the  barons  in  drawing  up  the 
Charter  to  make  new  law.  Their  whole  opposition  to  the 
king  was  based  on  the  as'sertion  that  he  had  been  violating 
the  law  in  his  conduct  towards  them  and  that  he  must  be 
made  to  promise  to  do  so  no  longer.  As  they  had  learned 
that  they  could  not  trust  him,  the  special  points  they  had 
in  mind  were  put  into  writing  and  the  king  was  pledged  to 
observe  them  in  the  most  binding  form  which  they  could 
use,   the  form  of  a   legal  grant  or  conveyance.     They  did 

sStubbs,  S.  C,  291-303;  A.  and  S.,  42-52. 


HISTORICAL  IMPORTANCE  129 

add  a  few  points  which  were  new,  in  some  of  which  they  were 
wrong,  but  in  nearly  all  their  demands,  looked  at  as  a  mere 
matter  of  law,  they  were  clearly  within  their  rights.  They 
were  stating  old  law,  not  making  new.  Looked  at  from  this 
narrow  point  of  view,  Magna  Carta  is  a  document  of  the 
past,  not  of  the  future,  and  it  belongs  to  a  past  then  rapidly 
disappearing.  None  of  the  famous  institutional  features 
of  English  liberty,  which  were  so  soon  to  begin  the  trans- 
formation of  its  constitution,  can  be  found  in  it.  Consent 
to  taxation,  parliament  with  the  representative  system, 
habeas  corpus,  the  jury  trial,  in  their  historical  significance, 
were  all  unknown  in  1215.  On  the  other  hand,  the  feudal 
law  which  it  records,  the  feudal  relation  between  lord  and 
vassal  on  which  it  was  based,  was  already  beginning  to  lose 
its  importance  for  the  community,  and  within  fifty  years  the 
barons  themselves  show  their  indifference  to  some  of  the 
rights  on  which  they  most  strongly  insisted  against  John. 
If  we  were  to  regard  the  Charter  in  itself  alone,  without  re- 
gard to  the  consequences  which  followed  from  it,  its  value 
would  be  chiefly  as  a  record,  a  record  of  certain  points  of 
contemporary  law,  and  of  the  barons'  opinion  of  the  char- 
acter of  John  and  of  their  own  rights  as  against  him. 

The  historical  importance  of  the  Great  Charter  is  to  be 
found,  not  in  the  specific  provisions  which  it  embodied,  but  in 
the  principle  upon  which  it  was  based.  In  1215  this  meant 
no  more  than  an  application  of  the  fundamental  contract 
relationship  between  lord  and  vassal  to  the  special  problem 
of  the  time:  how  to  make  sure  that  the  king  would  be  faith- 
ful in  the  future  to  his  side  of  the  contract.  Fortunately 
this  fundamental  principle  was  not  stated  in  explicit  form  in 
the  Charter.  It  was  taken  for  granted  and  left  to  be  in- 
ferred, though  plainly  implied.  It  was  consequently  left 
in  shape  to  be  easily  expanded  into  a  general  principle  appli- 
cable to  all  the  changing  phases  of  national  development : 
There  is  a  body  of  law  in  the  state,  of  rights  belonging  to 
the  subject  or  to  the  community,  which  the  king  is  bound  to 


130  THE  GREAT  CHARTER 

regard.  With  this  there  went  another  principle,  drawn 
directly  from  the  feudal  law,  and  put  into  specific  form  in 
chapter  61  of  the  Charter,  though  with  reference  only  to  the 
special  case  of  1215,  that  if  the  king  will  not  regard  these 
rights  he  may  be  compelled  by  force,  by  insurrection  against 
him,  to  do  so.  It  is  upon  these  two  principles,  henceforth  in- 
separable, though  standing  necessarily  in  quite  different 
relations  to  the  formal,  avowed  constitution,  that  the 'build- 
ing of  the  constitution  rested.  It  was  through  them  that 
Magna  Carta  accomplished  its  great  work  for  free  govern- 
ment in  the  world.  It  is  proposed  to  comment  here  only 
upon  those  parts  of  the  Charter  which  have,  or  which  seem 
to  have,  the  most  importance  for  the  future,  or  which  indi- 
cate its  character  most  clearly. 

The  Charter  opens  with  a  clause  descriptive  in  character, 
giving  the  antecedents  of  the  grant  and  a  list  of  those  who 
had  advised  the  king  to  make  it,  in  which  the  leaders  of  the 
baronial  party  were  not  included.  This  is  followed  imme- 
diately, according  to  medieval  ideas  of  precedence,  by  a 
clause  granting  to  the  church  its  rights  and  liberties  in  gen- 
eral terms  but  with  a  reference  to  a  charter  earlier  granted 
by  the  king  and  more  specific  in  character.9  The  chief  point 
which  the  church  had  in  mind  at  this  time  was  freedom  from 
interference  with  the  election  of  bishops  and  abbots.  In  the 
later  issues  of  the  Charter  this  clause  was  reduced  to  still 
more  general  terms,  and  in  practice  Henry  III,  John's  suc- 
cessor, did  not  consider  himself  bound  even  by  what  promise 
was  left  in  it. 

Chapter  1  closes  with  the  specific  granting  clause  of  the 
Charter.  This  is  taken  from  the  most  complete  and  unre- 
served form  of  land  conveyance,  of  warranty  deeds,  known 
to  that  time.  In  selecting  this  form  the  barons  no  doubt 
intended  to  make  the  grant  so  binding  legally  that  neither 
the  king  nor  his  successors  could  repudiate  it  but,  while  a 
grant  of  land  in  this  form  of  words  from  one  private  man 

oStubbs,  S.  C,  282-284;  A.  and  S.,  40-41. 


FEUDAL  PRACTICE  AND  TAXATION        131 

to  another  would  undoubtedly  at  that  time  have  conveyed 
a  perfect  title  to  the  donee  and  his  heirs  after  him  as  against 
the  donor  and  his  heirs,  the  law  was  not  yet  clear  that  the 
sovereign  could  bind  his  successors  on  the  throne  without 
their  specific  confirmation  of  the  grant.  In  practice  for 
two  hundred  years  it  was  considered  wise  to  get  such  a  con- 
firmation from  successive  kings  and  from  some  many  times 
over  for  special  reasons. 

Chapters  2-6  relate  to  points  of  feudal  practice  in  which 
naturally  the  interests  of  the  king  and  the  barons  were 
opposed :  reliefs,  wardship  and  marriage.  They  show  at 
the  beginning  of  the  Charter  the  predominant  feudal  interest 
of  the  barons  and  also  the  general  fairness  of  their  de- 
mands. In  all  these  matters  the  legal  rights  of  the  king 
were  clearly  recognized  and  protection  was  sought  only 
against  abuses.  It  is  doubtful  if  before  this  date  the  amount 
of  the  relief  to  be  paid  by  the  feudal  tenants  of  the  king,  at 
least  of  barons,  had  been  fixed  by  law,  but  it  was  reasonable 
that  it  should  be,  and  there  is  evidence  enough  that  John 
had  taken  advantage  of  his  power  to  exact  unjust  payments 
of  reliefs  and  of  fines  for  succession.  In  the  case  of  ward- 
ship the  difficulty  was  with  the  conduct  of  those  to  whose 
custody  the  lands  of  the  heir  had  been  committed  and  who 
often  wished  to  get  all  they  could  out  of  their  opportunity. 
The  plan  of  putting  the  land  into  the  hands  of  two  men  of 
the  fief  was  new  and  does  not  seem  to  have  been  employed 
afterwards,  but  the  records  of  the  courts  show  that  care  was 
taken  to  enforce  the  law  against  waste. 

Chapters  12  and  14«  are  among  those  which  have  been 
considered  of  special  constitutional  importance  as  relating 
to  the  right  of  consent  to  taxation  by  parliament.  It  is 
hardly  to  be  doubted  I  think  that  they  did  have  decided 
influence  in  the  establishment  of  this  parliamentary  right, 
although  they  were  left  out  of  the  reissue  of  1225  which 
became  the  Magna  Carta  of  English  law ;  certainly  before  the 
close  of  a  century  they  were  restored  in  wider  form  to  the 


132  THE  GREAT  CHARTER 

tradition  of  the  Charter.  But  it  is  another  question  and 
one  quite  as  important  for  the  historian :  What  did  they 
mean  to  the  barons  and  the  king  in  1215?  In  trying  to 
answer  this  question,  we  notice  at  once  that  taxation  in  the 
modern  sense  is  not  referred  to  at  all.  The  provision  con- 
cerns feudal  aids  and  the  feudal  payment  of  scutage  only. 
The  aids  had  been  customary  payments  in  the  feudal  world 
for  several  centuries  and  scutage  for  one.  Therefore,  the 
aids  because  fixed  in  custom,  and  scutage  because  a  custom- 
ary commutation  of  a  legal  service,  did  not  strictly  speaking 
require  action  by  the  great  council,  but  such  action  was  very 
likely  usual  in  case  of  the  aids,  and  had  occurred  in  at  least 
one  scutage.  To  demand,  however,  as  was  done,  that  every 
scutage  in  order  to  be  legal  should  have  the  consent  of  the 
great  council,  and  that  those  who  were  not  present  should 
be  bound  by  the  action,  was  of  doubtful  legality,  interfered 
with  the  right  of  the  individual  feudal  tenant  to  serve  if  he 
wished  in  place  of  paying,  and  was  probably  not  what  the 
barons  wished  to  secure  by  the  provision.  The  specially  im- 
portant provision  of  the  chapter  is  that  any  extraordinary 
aid,  not  provided  for  in  the  regular  feudal  custom,  and  so 
not  covered  by  the  contract  between  the  king  and  his  barons, 
must  be  obtained  by  the  counsel,  and  necessarily  the  consent, 
of  those  who  were  to  pay.  In  this  demand  the  barons  were 
only  asking  what,  the  law  already  gave  them.  Their  purpose 
was  not  to  establish  a  new  right  but  to  bind  the  king  to 
an  old  one.  The  emphasis  here  placed  upon  this  right,  how- 
ever, undoubtedly  aided  materially  in  carrying  it  over  from 
the  feudal  scheme,  as  that  passed  away,  into  the  wider  con- 
ditions of  the  modern  state.  The  last  clause  may  possibly 
mean  that  the  barons  intended  to  obtain  for  London  the 
position  of  the  French  commune,  that  is  to  put  the  city  as  a 
corporation  in  the  same  relation  to  the  king  as  one  of  them- 
selves. 

In  the  interpretation  of  chapter  14,  we  are  confronted  at 
once  with  the  question  as  to  the  meaning  of  consilium.     The 


THE  FEUDAL  GREAT  COUNCIL     133 

words  consilium  and  concilium  are  regarded  by  many  schol- 
ars as  identical  in  meaning  and  practically  interchangeable 
in  the  documents  of  the  twelfth  and  thirteenth  centuries. 
There  is  no  doubt  but  that  consilium  is  used  technically  as 
the  name  of  the  small  council.  On  the  other  hand  it  is  al- 
most equally  certain  that  it  is  not  used  of  the  great  council, 
but  that  concilium  is,  except  in  rare  instances,  the  word  ap- 
plied to  it.  Consilium  is,  however,  often  used  of  the  action 
of  the  great  council.  It  is  with  its  counsel  that  legislation  is 
enacted  and  decisions  made.  It  must  be  considered,  I  think, 
practically  certain  that  no  mention  is  made  here  of  the 
"  common  council  of  the  kingdom,"  but  that  the  method  of 
getting  the  common  counsel  of  the  kingdom  is  described. 
That  is  undoubtedly  by  a  meeting  of  the  great  council. 
The  specification  in  chapter  14*  of  the  persons  who  were  to 
be  summoned  leaves  no  doubt  on  that  point.  The  assembly 
is  composed  solely  of  tenants  in  chief  of  the  crown.  The 
greater  barons  were  to  be  summoned  individually,  the  minor 
by  a  general  summons  for  each  county  through  the  sheriff, 
a  method  of  summons  which  was  also  used  in  calling  for 
the  related  military  service  of  the  barons.  We  may  conse- 
quently paraphrase  the  principle  asserted  in  saying  that 
the  extraordinary  aid  must  be  consented  to  by  those  who 
are  to  pay  it. 

Two  things  further  should  be  noticed  concerning  chapter 
14.  The  feudal  great  council  is  here  shown  in  charge  of 
one  of  the  primary  functions  of  government,  one  of  the 
primary  duties  of  the  modern  legislature,  of  providing  the 
state  with  an  income.  No  better  illustration  can  be  found 
of  the  fact  that  the  assembly  of  barons  was  the  central 
machine  of  the  feudal  state.  The  second  thing  is  that  no 
trace  of  the  representative  idea  can  be  found  here.  The 
assembly  provided  for  is  the  assembly  of  all  the  tenants  in 
chief  great  and  small.  The  principle  implied  in  the  last 
clause,  that  those  absent  should  be  bound  by  the  action  of 
those  present,  is  not  the  same  as  the  principle  of  representa- 


134  THE  GREAT  CHARTER 

tion  and  was  a  necessity  of  taxation.  It  had  undoubtedly 
been  applied  in  the  case  of  the  Saladin  tithe  and  in  the  taxa- 
tion of  Richard's  reign.  We  should  perhaps  except  the  case 
of  scutages  which,  theoretically  at  least,  implied  a  personal 
right  of  choice  in  the  case  of  each  baron  as  to  whether  he 
preferred  to  serve  or  to  pay  the  commutation.  To  declare, 
as  some  modern  critics  have  done,  that  the  barons  should 
have  gone  beyond  the  simple  and  specific  provisions  of  these 
clauses,  and  have  laid  down  general  constitutional  princi- 
ples to  guard  against  dangers  which  the  future  was  to  dis- 
close, is  to  demand  something  impossible  to  them. 

Chapters  17-22  concern  directly  the  new  judicial  system 
which  had  been  begun  by  Henry  II.  They  show  conclu- 
sively that  while  the  barons  may  have  objected  to  some 
features  of  that  system,  they  had  no  intention  of  making  a 
general  attack  upon  it.  In  the  particulars  which  these 
chapters  cover,  the  convenience  and  simplicity  of  the  new 
procedure  had  undoubtedly  won  its  way  into  permanence 
against  all  opposition.  Chapter  17  concerns  the  court  of 
common  pleas  established  by  Henry  II  in  connection  with 
the  itinerant  justice  courts  and  enacts  as  law  what  had  been 
for  some  time  the  usual  practice  that  this  central  court  should 
remain  at  Westminster  no  matter  where  the  king  might  be. 
Another  class  of  cases  already  beginning  to  be  distinguished 
as  coram  rege  cases,  in  two  or  three  generations  to  be  known 
as  king's  bench  cases  and  to  give  rise  to  the  court  of  king's 
bench,  still  continued  to  follow  the  king  wherever  he  went. 
The  distinction  between  these  two  classes  of  cases  was  not 
as  yet  very  clearly  drawn,  but  the  chapter  is  noteworthy  as 
legalizing  one  stage  in  the  differentiation  of  the  common 
law  courts. 

Chapters  18  and  19  deal  with  the  three  possessory 
assizes,  essential  parts  of  the  new  judicial  system,  and  give 
them  the  formal  sanction  of  the  baronial  party  as  recog- 
nized parts  of  the  law.  Details  enacted  in  chapter  18  re- 
garding the  operation  of  the  assizes  did  not  prove  satisfac- 


THE  NEW  JUDICIAL  SYSTEM  135 

tory  and  were  soon  repealed.  These  references  to  the 
judicial  system  lead  naturally  to  chapters  20-22  which  were 
intended  to  protect  all  classes,  as  all  were  equally  involved, 
from  what  we  call  in  modern  law  "  excessive  fines."  They 
were  wider  in  their  range  than  the  two  preceding  chapters, 
for  they  cover  amercements  in  criminal  as  well  as  civil  cases. 
Their  purpose  plainly  was  to  prevent  the  use  of  the  courts 
for  the  extortion  of  money  and  they  indicate,  as  other 
chapters  have,  the  character  of  John's  government.  The 
exemption  of  the  freehold  and  the  wainage,  while  no  doubt 
intended  on  general  principles,  like  the  exemption  of  the 
merchant's  stock  of  goods,  to  benefit  the  person  directly  af- 
fected, was  almost  as  much  to  the  advantage  of  the  lord  of 
the  manor  as  to  that  of  the  holder  of  the  land.  The  last 
clause  of  chapter  20  comes  the  nearest  to  a  recognition  of  the 
jury  of  anything  in  the  Charter,  though  that  is  indirectly 
provided  for  in  chapter  18.  Chapter  21  reads  like  an  after 
thought  to  protect  the  baron  from  amercement  by  the  jury 
of  common  freemen  just  provided  for.  Chapter  24  should 
logically  immediately  follow  chapter  22,  for  it  also  deals 
with  the  judicial  system.  It  is  a  step  in  the  transfer  of  all 
criminal  business  into  the  king's  hands  and  does  put  the  trial 
of  all  such  cases  into  the  royal  courts,  leaving  only  minor 
police  offences  for  trial  in  the  local  courts. 

A  series  of  provisions,  of  which  chapters  28,  30  and  31 
are  examples,  are  interesting  because  they  state  in  specific 
form  the  principle  which  has  passed  into  modern  constitu- 
tional law  in  the  statement  that  "  private  property  shall  not 
be  taken  for  public  use  without  just  compensation."  Chap- 
ter 34,  which  forbids  the  issuing  of  the  writ  praecipe  in  such 
a  way  as  to  remove  a  case  from  a  private  court  into  the 
king's,  is  especially  important  because  it  reveals  clearly 
the  attitude  of  the  barons  towards  one  aspect  of  the  new 
ro}'al  justice.  The  baronial  jurisdiction  over  land,  how- 
ever, was  fighting  a  losing  battle  against  the  king's  courts 
and,  although  this  provision  was  in  form  obeyed,  the  cur- 


136  THE  GREAT  CHARTER 

rent  of  cases  out  of  the  private  courts  was  not  checked 
and  by  the  end  of  another  half  century  the  barons  themselves 
were  comparatively  indifferent  to  the  result.  Chapters  35 
and  41  for  the  benefit  of  trade  should  not  be  overlooked  as 
showing  how  general  in  scope  the  Charter  is  and  as  indicating 
that  already  the  barons  were  becoming  aware  of  their  inter- 
est in  the  activities  of  foreign  merchants  which  in  the  next 
century  became  of  constitutional  influence. 

A  group  of  chapters  seeking  to  protect  the  liberty  of  the 
individual  as  against  the  government  may  in  part  at  least 
be  expressed  in  general  terms  in  modern  constitutional 
language.  Chapter  36  has  been  sometimes  thought  to  secure 
the  writ  of  habeas  corpus,  but  the  writ  referred  to  is  not  the 
direct  ancestor  of  the  modern  writ  but  one  that  accom- 
plished partially  the  same  result  in  a  narrower  range  of 
uses.  Chapter  38  has  been  enlarged  in  its  range  by  ex- 
perience since  1215  but  it  lies  in  principle  at  the  basis  of 
our  provisions  that  "  no  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime  unless  on  presentment 
or  indictment  of  a  grand  jury,"  and  that  "  no  warrants 
shall  issue  but  upon  probable  cause  supported  by  oath  or 
affirmation."  Closely  related  also,  as  a  fundamental  prin- 
ciple to  the  "  bill  of  rights  "  of  our  constitutions,  is  the 
promise  of  chapter  40  that  justice  shall  be  free  and  fair 
to  all.  Chapter  39  has  been  the  subject  of  much  contro- 
versy but  the  questions  in  dispute  do  not  touch  the  constitu- 
tional principle  here  enacted  that  "  no  person  shall  be  de- 
prived of  life,  liberty  or  property  without  due  process  of 
law."  The  question  what  classes  were  intended  to  be  cov- 
ered by  the  word  "  free  man,"  for  example,  while  important 
with  regard  to  the  intentions  of  the  barons  in  1215,  is 
otherwise  chiefly  of  academic  interest  because  the  word  was 
so  soon  after  the  granting  of  the  Charter  interpreted  to 
mean,  not  merely  the  baronial  class,  but  all  men  who  were 
in  law  free.     "  The  judgment  of  his  peers  "  came  in  later 


RIGHT  TO  RENOUNCE  ALLEGIANCE        137 

times  to  be  applied  to  the  jury  trial,  but  it  had  no  such 
meaning  in  1215.  Its  real  meaning  survives  today  in  the 
right  of  the  members  of  the  house  of  lords  to  be  tried  by  that 
body  only. 

Chapter  61  is  one  of  the  most  important  in  the  Charter 
as  indicating  both  the  foundation  of  law  and  right  upon 
which  the  barons  supposed  themselves  to  be  acting  and  what 
objects  they  had  in  view.  If  we  regard  it  as  part  of  a  state 
constitution,  it  is  of  a  most  extraordinary  sort  for  it  does 
two  things  which  seem  antagonistic  to  settled  government: 
it  takes  away  from  the  government  one  of  its  primary 
functions,  the  judicial,  in  a  certain  range  of  cases  and  vests 
it  in  a  self-appointed  committee,  and  second  it  legalizes  insur- 
rection and  war  upon  the  sovereign.  The  idea  of  a  state 
constitution,  however,  or  of  constitutional  law  in  our  sense, 
was  impossible  to  the  barons  in  1215  and,  if  we  regard  the 
Charter  as  intended  to  be  chiefly  a  statement  of  feudal  law, 
its  bearing  on  the  purpose  of  the  barons  and  on  their  right 
to  what  they  demand  are  clear.  The  feudal  law  of  Western 
Europe  recognized  the  right  of  the  vassal  to  renounce  his 
allegiance  and  to  make  war  on  his  lord  to  protect  himself 
from  injustice.  In  no  such  case  could  he  be  charged  with 
treason.  The  barons  were  at  the  moment  acting  upon  this 
right  and  had  shortly  before  served  upon  the  king  the  re- 
quired formal  notice  withdrawing  their  fealty.  They  must 
have  understood  from  the  character  of  John  that,  whatever 
he  might  promise,  the  question  was  very  likely  soon  to  arise 
whether  they  must  not  do  so  again.  But  they  wished  to  avoid 
the  necessity  if  possible,  and  to  limit  the  resort  to  force  both 
in  its  occurrence  and  in  its  extent.  They  accordingly  de- 
vised a  method  of  bringing  pressure  to  bear  upon  the  king 
if  he  began  to  break  his  promises.  This  method  was  to  be 
tried  before  there  should  be  any  resort  to  force.  If  it 
failed,  then  their  general  right  of  insurrection,  which  they 
had  only  postponed  to  try  their  expedient,  would  be  avail- 


138  THE  GREAT  CHARTER 

able,  but  in  their  written  statement  of  it  they  did  not  include 
the  right  to  depose  the  king,  though  that  was  logically  in- 
volved. 

This  was  a  crude  and  clumsy  expedient,  but  it  is  to  be 
remembered  that  it  was  the  first  attempt  ever  made  in  his- 
tory to  put  into  constitutional  form  the  principle  that  the 
government  must  obey  the  fundamental  laws  of  the  state, 
for  that  is  what  the  barons  really  did  though  they  could 
not  have  been  as  conscious  of  the  meaning  of  their  act  as 
we  are.  There  was  no  earlier  experiment  from  which  the 
men  of  1215  could  learn.  There  was  no  theoretical  discus- 
sion of  the  institutional  forms  of  a  limited  monarchy  in  the 
literature  open  to  them.  Nor  should  its  clumsiness  conceal 
from  us  the  fact  that  in  this  first  attempt  is  clearly  struck 
the  keynote  of  English  constitutional  history  and  foreshad- 
owed, faintly  perhaps  but  truly,  what  is  its  final  triumph 
and  greatest  glory,  for  this  was  in  truth  an  attempt  to  find 
a  way  of  enforcing  the  fundamental  law  upon  the  king  with- 
out the  necessity  of  civil  war  and  revolution,  with  civil  war 
and  revolution  as  the  last  resort  only.  That  is  in  very 
briefest  form  of  statement  what  the  Anglo-Saxon  constitu- 
tion is ;  it  is  a  perfected  method  of  holding  the  government 
responsible  to  the  will  of  the  nation  without  the  constant 
danger  of  civil  war. 

For  what  the  Great  Charter  did  was  to  lay  down  two 
fundamental  principles  which  lie  at  the  present  day,  as  clearly 
as  in  1215,  at  the  foundation  of  the  English  constitution 
and  of  all  constitutions  derived  from  it.  First  that  there 
exist  in  the  state  certain  laws  so  necessarily  at  the  basis  of 
the  political  organization  of  the  time  that  the  king,  or  as 
we  should  say  today  the  government,  must  obey  them;  and 
second  that,  if  the  government  refuses  to  obey  these  laws,  the 
nation  has  the  right  to  force  it  to  do  so,  even  to  the  point  of 
overthrowing  the  government  and  putting  another  in  its 
place.  That  this  second  principle  has  never  been  distinctly 
affirmed  in  legal  form  since  the  thirteenth  century  is  not 


SUPREMACY  OF  LAW  139 

evidence    against    its    continued    existence.     Even    the    thir- 
teenth century  expressed  it  only  as  a  right  of  insurrection 
to  force  conformity  to  the  law,  not  of  the  deposition  ^of  the 
king,  but  in  the  great  crises  of  the  past  when  the  constitu- 
tion was  seriously  endangered,  the  nation  never  hesitated  to 
act  upon  the  extreme  right  logically  involved  in  the  suprem- 
acy of  the  law.     We  have  only  to  remember  the  Declaration 
of  Independence  with   its    reiterated   statements,   that   what 
the  king  of  England  had  been  doing  was  an  infringement  of 
the  legal  rights  of  the  colonists  as  Englishmen,  until  the  point 
had  been  reached  when  he  was  "  no  longer  fitted  to  be  the 
ruler  of  a  free  people."     The  principle  upon  which  the  Dec- 
laration of  Independence  rests  is  exactly  the  same  as  that 
upon  which  Magna  Carta  rests,  stated  in  modern  terms  by 
Colonists,  i.  e.,  by  a  portion  of  the  nation  which  could  not 
undertake  to  revolutionize  the  whole.     In  every  age  of  Eng- 
lish history  in  which  the  question  has  risen,  in  every  crisis  in 
the  development  of  English  liberty,  this  double  principle  is 
that  upon  which  our  ancestors  stood  and  upon  which,  as  a 
foundation,  they  built  up  little  by  little  the  fabric  of  free 
government  under  which  we  live.     The  specific  and  individual 
legal  provisions  which  Magna  Carta  stated  may  soon  have 
disappeared  in  the  changing  social  conditions  of  the  follow- 
ing   generations,    but    the    sound    judgment    of   the    nation 
insisted  that   successive  kings,   one   after  the   other,   should 
pledge  themselves  to  be  faithful  to  the  Charter,  some  of  the 
kings  many  times  over,  and  should  confirm  to  them  the  lib- 
erties  which   it   granted.     In   these   demands   they   did   not 
intend  to  pledge  their  king  to  laws  which  had  become  obso- 
lete, but  to  that  fundamental  conception  which  underlay  all 
special  provisions,  a  conception  of  the  relation  of  the  gov- 
ernment to  the  governed  which  has  become  almost  prover- 
bial in  the  Anglo-Saxon  world  —  a  conception  not  expressed 
in  the  definite  terms  of  today,  which  would  have  been  impossi- 
ble to  the  thirteenth  century,  but  clearly   enough  implied. 
These  renewed  pledges  and  confirmations  continued  almost  to 


140  THE  GREAT  CHARTER 

the  end  of  the  middle  ages,  until  the  supremacy  of  parlia- 
ment had  come  to  be  rather  clearly  recognized  and  the  chief 
lines  of  the  modern  constitution  quite  distinctly  laid  down. 
Then  in  the  fifteenth  century,  when  we  may  say  the  idea  of  a 
constitutional  monarchy  had  become  for  the  time  at  least  a 
habit  of  the  English  mind,  they  ceased. 

Although  in  the  weeks  immediately  following  the  accept- 
ance of  the  Charter  King  John  acted  as  though  he  intended 
to  be  bound  by  its  provisions,  it  is  probable  that  he  had 
never  really  meant  to  keep  his  promises.10  By  the  end  of 
summer  he  had  collected  a  strong  force  and  a  papal  bull  had 
released  him  from  his  obligation  to  the  Charter.  It  became 
evident  to  the  barons  that  if  they  were  to  maintain  their 
case  against  the  king  they  must  proceed  to  extreme  measures. 
They  accordingly  denounced  their  allegiance,  deposed  John 
and  recognized  in  his  place  Louis,  husband  of  his  niece  and  heir 
to  the  French  throne.  Civil  war  began  again  but  John  was 
stronger  than  he  had  been  before,  and  the  barons  notwith- 
standing the  help  of  Louis  made  no  progress.  What  the 
result  would  have  been,  it  is  not  possible  to  say,  but  the 
situation  was  changed  by  the  sudden  death  of  John  in  Octo- 
ber, 1216.  His  successor,  Henry  III,  was  a  child  nine  years 
old  against  whom  there  could  be  no  grievances  and  the  chief 
man  of  the  new  government,  William  Marshal,  Earl  of  Pem- 
broke, was  in  sympathy  with  the  barons'  demands.  More 
and  more  rapidly  the  barons  began  to  abandon  Louis  and 
make  their  peace  with  the  government,  and  the  process  was 
hastened  by  a  reissue  of  the  Great  Charter  in  November, 
121G.11  In  November  1217,  after  the  revolted  barons  and 
the  French  had  been  defeated,  and  Louis  had  withdrawn,  the 
Charter  was  again  reissued,12  and  this  version,  with  no  im- 
portant changes,  was  issued  once  more  by  Henry  III  in  Feb- 

io  Stuhbs,  S.  C,  303-304. 

11  Stubbs,  S.  C,  335-339. 

12  Stubbs,  flf.  C,  340-344. 


CHANGES  IN  REISSUES  141 

ruary,  1225,  and  became  the  final  Magna  Carta  of  English 
law.13 

In  the  first  two  reissues  a  number  of  chapters  of  the  orig- 
inal Charter  of  1215  were  omitted  and  in  others  important 
changes  were  made.  Too  much  emphasis  has  often  been 
placed  upon  the  omissions  as  indicating  the  spirit  of  the  re- 
issues. Ofjhese  chapters  12  and  61  have  been  considered  the 
most  significanfT^-But  chapter.61  could  hardly  have  been 
retained.  The  Charter  was  now  issued,  not  upon  the  de- 
mand of  a  successful  revolution,  but  by  the  government 
itself  which  recognized  it  as  binding  law  and  pledged  itself 
to  abide  by  it.  If  it  could  be  trusted,  as  it  intended  to 
assert  that  it  could  be,  the  special  provision  for  enforcing 
the  law  upon  the  king  was  unnecessary.  The  general  prin- 
ciple of  feudal  law,  of  which  it  was  a  modification  and  lim- 
itation, remained  always  unchanged  to  be  appealed  to 
whether  it  was  stated  in  the  Charter  or  not.  The  same 
thing  is  true  of  chapter  12.  In  the  reissue  of  1216  sev- 
eral provisions  of  the  original  charter  are  referred  to  as  of 
doubtful  character  (dubitabilia)  and  among  them  that  re- 
garding scutages  —  evidently  the  chief  point  in  the  barons' 
minds  in  chapter  12.  In  requiring  the  action  of  the  great 
council  upon  a  scutage  the  barons  had  probably  gone 
farther  than  they  intended  or  desired.  In  chapter  44  of 
the  Charter  of  1217  it  was  provided  that  scutages  should  be 
taken  as  they  had  been  in  the  time  of  Henry  II,  which  prob- 
ably shows  us  all  that  they  intended  in  1215,  and  is  in  strict 
law  all  that  they  had  a  right  to  demand. 

A  change  like  this  is  typical  of  most  of  the  changes  made 
in  John's  Charter.  They  are  in  the  direction  of  more  exact 
and  accurate  statements  of  the  law.  Some  of  them  look  as 
if  they  were  changes  which  experience  had  shown  to  be  nec- 
essary from  attempts  to  regard  the  Charter  as  statute  law 
to  be  enforced  in  the  courts.  Some  of  them  are  the  modifica- 
13  Stubbs,  8.  C,  349-351. 


142  THE  GREAT  CHARTER 

tion  of  demands  which  were  unjust  to  the  king  and  many  of 
the  additions  were  in  the  interest  of  the  more  exact  state- 
ment of  the  law.  In  the  changes  which  were  new  to  the  re- 
issue of  1217,  however,  most  of  them  additions,  there  is  evi- 
dently some  further  influence  at  work.  This  version  con- 
tains more  new  legislation  than  the  earlier  Charters ;  it  deals 
more  extensively  with  matters  which  are  those  of  govern- 
ment and  administration  ;  and  it  shows  some  care  to  protect 
the  interests  of  the  greater  barons  against  their  tenants. 
It  should  be  remembered,  however,  that  through  all  the  series 
of  Charters  no  modification  is  made  of  the  fundamental  prin- 
ciple that  there  is  a  body  of  recognized  law  which  the  king 
must  observe  in  his  dealings  with  the  community. 

From  the  reissue  of  1225  on  to  the  end  of  the  middle  ages 
references  to  Magna  Carta  are  frequent,  though  less  fre- 
quent in  the  fifteenth  century  than  they  had  been  before. 
Of  these  references  two  kinds  are  of  most  common  occurrence : 
references  in  chroniclers  and  those  in  official  documents, 
records  and  rolls.  Chronicle  references  are  usually  com- 
plaints of  some  violation  by  the  government  or  its  officers, 
very  commonly  of  the  rights  of  the  church.  Official  ref- 
erences are  of  many  different  kinds :  legislative  and  other 
interpretation  of  clauses,  or  more  specific  application  of 
them,  directions  as  to  their  enforcement,  and  quite  fre- 
quently appeals  to  the  Charter  in  cases  before  the  law  courts 
as  to  a  binding  statute.  There  is  evidence  that  the  omitted 
chapters  are  not  forgotten  but  are  still  sometimes  thought 
of  as  a  part  of  the  Charter  and  there  is  evidence  of  an 
occasional  disposition  to  treat  the  Charter  as  fundamental 
law  binding  even  parliament.  A  formal  confirmation  of  the 
Charter  was  demanded  and  obtained  several  times  over  of 
all  kings  from  Henry  III  to  Henry  IV,  but  only  once  each 
of  Henry  V  and  Henry  VI.  From  the  beginning  of  the 
reign  of  Edward  III  to  the  end  of  that  of  Henry  IV  the 
statute  roll  of  each  session  of  parliament  as  a  rule  opened 
with  a  confirmation  of  the  Charter.     These  confirmations,  as 


PURPOSE  OF  CONFIRMATIONS  143 

has  been  said,  cannot  be  regarded  as  intended  to  continue 
all  the  specific  provisions  of  the  Charter  as  binding  law ; 
many  of  them  had  become  obsolete.  Their  purpose  was 
rather  to  pledge  the  king  to  the  fundamental  principle  that 
in  certain  directions  his  conduct  was  bound  by  the  law. 

Bibliographical  Note. —  G.  B.  Adams,  The  Origin  of  the 
English  Constitution,  1920.  L.  W.  Vernon  Harcourt,  His 
Grace  the  Steward  and  Trial  of  Peers,  1907.  W.  S.  McKechnie, 
Magna  Carta,  1914.  Magna  Carta  Commemoration  Essays,  1917. 
S.  K.  Mitchell,  Taxation  under  John  and  Henry  III,  1914.  K. 
Norgate.  John  Lackland,  1902.  F.  M.  Powicke,  The  Loss  of 
Normandy,  1913. 


CHAPTER  VI 

GROWTH  OF  THE  CONSTITUTION  AND  OF 
THE  COMMON  LAW 

Magna  Carta  closes  one  epoch  of  English  Constitutional 
History  and  begins  another.  The  absolute,  irresponsible 
monarchy  of  the  earlier  period  comes  to  an  end ;  the  limited 
monarchy  begins  to  form.  Of  course  for  a  long  time  the 
change  was  very  slight,  the  progress  very  slow,  but  the 
principle  upon  which  in  course  of  time  the  constitutional 
monarchy  was  to  be  based  had  been  laid  down,  and  it  was 
never  to  be  forgotten  nor  to  lose  its  fundamental  importance 
in  the  future. 

Magna  Carta  in  itself  accomplished  nothing.  Considered 
as  a  code  of  feudal  law,  it  would  have  no  more  power  of 
growth  than  any  other  code  of  law.  It  depended  entirely 
upon  the  character  of  the  immediate  future  whether  the 
principles  to  which  it  gave  expression  should  be  developed 
into  controlling  principles  of  the  constitution  or  should  be 
forgotten  and  disregarded.  If  John  had  been  succeeded  by 
a  king  as  strong  as  himself,  or  as  his  grandson  Edward  I,  or 
by  any  king  who  could  have  had  a  suspicion  of  the  results 
to  which  the  Charter  might  lead,  it  would  not  have  been 
difficult  to  have  pushed  it  into  the  background  and  have 
prevented  any  practical  reference  to  it.  It  was  one  of  the 
happy  accidents  of  monarchical  succession  that  almost  im- 
mediately after  the  Charter  came  the  long  reign  of  a  weak 
king.  Henry  III  succeeded  in  1216  and  reigned  until  1272. 
During  this  long  period  the  character  of  the  king  was  what 
determined  the  fate  of  the  germ  of  constitutional  liberty 
unconsciously  given  existence  in   1215.     Henry  was  not  a 

bad  king  in  the  sense  in  which  his  father  was.     He  was  not 

144 


FOREIGN  FAVORITES  145 

a  tyrant.  He  intended  to  be  a  good  king  and  believed  that 
he  was,  for  he  was  vain  and  had  great  confidence  in  his  own 
abilities  and  wisdom.  But  he  was  weak  both  in  intellect 
and  will,  always  under  the  influence  of  some  one  stronger 
than  himself  without  knowing  it,  and  never  able  to  judge 
correctly  currents  of  popular  feeling  which  he  ought  to  have 
understood  and  heeded. 

The  line  of  connection  between  the  character  of  the  king 
and  the  "growth  of  the  constitution  Was  first  made  by  the 
exploitation  of  England  by  successive  swarms  of  royal  favor- 
ites from  abroad,  at  first  survivors  from  his  father's  foreign 
supporters,  like  the  bishop  of  Winchester,  Peter  des  Roches, 
later  relatives  of  his  wife  from  Savoy,  and  later  still  his 
own  relatives  from  Poitou  through  his  mother's  second  mar- 
riage. These  men  not  merely  absorbed  rich  gifts  which  the 
king  had  to  bestow,  wealthy  marriages  and  wardships,  to 
the  intense  exasperation  of  the  English  barons  who  believed 
that  as  Englishmen  they  had  a  natural  claim  on  these  oppor- 
tunities.1 Many  of  them  obtained  important  offices  and  an 
influence  in  the  government,  which  made  them  seem  responsi- 
ble for  general  abuses  of  practice  and  policy  and  forced  the 
English  to  distinguish  still  more  clearly  between  the  king's 
"  natural  subjects  "  and  foreign  favorites. 

The  same  result  was  reached  in  consequence  of  difficulties 
of  the  reign  which  were  more  inevitable.  The  rising  scale  of 
prices,  which  had  so  complicated  the  problems  of  his  father's 
time,  continued  through  most  of  Henry  Ill's.  The  expense 
of  carrying  on  the  government  had  greatly  increased  but 
there  had  been  no  corresponding  increase  in  the  royal  rev- 
enues. It  was  impossible  for  barons  in  the  thirteenth  cen- 
tury to  understand  the  embarrassments  which  this  situation 
forced  upon  the  government,  and  it  was  natural  that  they 
should  attribute  the  king's  constant  demands  for  money  to 
his  reckless  extravagance  and  to  the  throwing  away  of  money 
on  his  favorites.  The  king  gave  excuse  enough  for  such  a 
a  Stubbs,  S.  C,  324-325. 


f 


146      GROWTH  OF  CONSTITUTION  AND  LAW 

judgment  for  he  never  learned  economy,  nor  the  value  of 
money,  nor  how  to  distinguish  between  his  own  caprices  and 
the  needs  of  the  state.  The  old  idea  of  the  state  still 
prevailed  though  these  experiences  were  to  change  it.  The 
king  regarded  the  kingdom  as  his  lordship,  his  manor,  all 
whose  income  was  his  private  possession  to  do  with  as  he 
chose.  The  barons'  constant  demand  on  their  side  was  that 
the  king  "  should  live  of  his  own  "  that  he  should  meet  all 
his  expenses,  including  those  of  the  state,  with  his  natural 
income,  as  the  lord  of  a  manor  did  with  his. 

The  situation  was  further  complicated  in  the  same  man- 
ner by  the  financial  demands  which  the  pope  was  making 
of  England.  The  papacy  was  finding  the  increased  cost  of 
government  as  serious  a  difficulty  as  any  secular  state  and 
was  attempting  to  enlarge  its  revenues  by  vigorous  measures 
throughout  all  Europe.  England  suffered  especially  per- 
haps because  of  its  feudal  dependence  on  the  pope,  but  its 
wealth  made  it  a  natural  taxing  ground.  Ecclesiastical 
grants  of  tenths,  or  tithes,  occur  at  intervals,  but  the  bit- 
terest complaints  were  excited  by  the  development  of  the 
practice  of  "  provisors."  A  prQ.vjsor  was  the  grant  of  the 
next  succession  to  an  ecclesiastical  benefice,  or  living,  not  yet 
vacant  —  a  grant  of  the  right  of  succession  when  vacant.2 
The  popes  had  gradually  developed  the  right  to  make  such 
appointments  and  now  in  their  financial  need  it  proved  a 
rich  resource.  An  officer  of  the  papal  court  appointed  to 
a  benefice  in  England  performed  its  duties  by  a  vicar  and 
drew  most  of  its  income  as  salary  for  his  services  in  Rome. 
Naturally  the  English  clergy  resented  such  appointments 
bitterly  as  a  flagrant  abuse  and  they  were  ready  to  join 
unanimously  with  the  barons  in  the  cry  "  England  for  the 
English." 

Two  changes  taking  place  in  the  reign  of  Henry  III  were 
greatly  assisted,  perhaps  chiefly  caused  by  these  conditions. 
One  was  the  rise  of  a  national  consciousness,  the  beginning 
2  Cheyney,  Readings,  249-255. 


A  NATIONAL  CONSCIOUSNESS  147 

of  the  modern  idea  of  the  nation,  the  growth  of  the  concep- 
tion of  the  community  in  its  corporate  capacity  as  a  thing 
distinct  from  the  state  or  government,  but  that  for  which  the 
state  exists.  In  trying  to  make  clear  just  what  happened  in 
the  rise  of  a  national  consciousness,  it  is  easy  to  over- 
emphasize and  overstate  what  occurred.  The  modern  demo- 
cratic nation,  with  city  and  country  on  an  even  plane,  and 
all  classes  with  equal  political  rights  and  theoretically  with 
power  to  determine  everything,  could  have  no  existence  in 
the  middle  ages.  The  medieval  national  community  was  still 
too  much  a  matter  of  separate  classes.  Each  group  had 
still  its  own  special  interests  which  hardly  allowed  a  really 
organic  unity  to  form,  or  every  man  to  be  interested  in  at 
least  some  phase  of  common  public  affairs  and  to  take  part 
to  that  extent,  if  not  further,  in  determining  their  trend  as 
in  the  modern  state.  All  that  we  can  discover  in  the  reign 
of  Henry  III  is  the  beginning,  still  very  faint,  of  that  ulti- 
mate result.  And  yet  what  does  take  place  means  then  no 
small  change.  It  means  the  rise  even  at  the  moment  of  a 
new  political  influence  and  a  new  conception  of  the  state, 
and  this  is  the  second  change  which  characterizes  the  reign. 
The  feudal  system,  as  a  form  of  organization  given  to  the 
state,  was  in  every  feature  of  its  political  operation  falling 
to  pieces  in  the  thirteenth  century.  Its  great  service  in 
holding  the  state  together  in  an  age  of  political  disintegra- 
tion was  no  longer  needed.  Its  legislative,  judicial,  military, 
and  financial  services  to  the  state  were  finis*Ke6r  and  better 
methods  of  getting  all  these  services  performed  were  coming 
in.  Along  with  these  things  there  disappeared  also,  in  the 
change  which  marked  the  rise  of  a  national  consciousness, 
the  general  conception  of  the  state  which  feudalism  had 
formed.  The  king  ceased  to  be  looked  upon  as  primarily 
the  lord  of  vassals ;  the  kingdom  was  no  longer  to  be  his 
barony,  his  lordship,  which  he  might  exploit  as  he  pleased. 
The  idea  was  growing  up  instead  that  his  was  an  office ;  that 
his  chief  function  was  to  seek  and  serve  the  interests  of  the 


V 


148      GROWTH  OF  CONSTITUTION  AND  LAW 


community  even  if,  as  it  now  begins  to  be  seen  may  be 
possible,  these  interests  are  in  conflict  with  personal  interests 
of  his  own.  The  community,  as  contemporaries  said,  and  we 
hardly  dare  yet  to  say  the  nation,  beginning  slowly  to  be 
looked  upon  as  a  kind  of  personal  whole,  a  corporate  unity, 
might  have  its  own  important  interest  which  might  be  injured 
or  sacrificed  by  the  things  the  king  would  like  to  do.  In  that 
case  his  interests  must  yield  and  the  community  might  insist 
by  force  that  its  views  should  prevail.  The  narrower  con- 
ception of  Magna  Carta,  that  the  barons  had  the  right  to 
protect  from  infringement  by  the  king  those  rights  of  theirs 
which  were  the  natural  outgrowth  of  the  fundamental  prin- 
ciples by  which  the  feudal  organization  of  the  state  was 
constituted,  was  broadening  out  into  the  more  modern  con- 
ception of  the  national  state  and  of  the  relation  of  the  gov- 
ernment to  the  community  of  the  ruled. 

But  in  trying  to  explain  the  ultimate  meaning  of  what  was 
taking  place,  the  impression  must  not  be  given  that  this  was 
a  theoretical  or  speculative  change,  or  one  brought  about  by 
reasoning  about  an  ideal  situation.  It  was  intensely  prac- 
tical. It  grew  directly  out  of  specific  abuses  and  expressed 
itself  in  specific^compTaints.  The  English  barons  bitterly 
complained  that  the  gifts  which  the  king  heaped  upon  his 
foreign  favorites  should  of  right  belong  to  them.  The  eager- 
ness with  which  the  king  pursued  abroad  his  own  interests, 
in  which  the  community  was  not  concerned,  but  for  which  it 
had  to  pay  heavily,  forced  upon  Englishmen,  the  king's 
natural  subjects  as  they  said,  the  consciousness  of  their  corpo- 
rate unity  and  corporate  interests  as  against  the  foreigner.3 
The  many  who  were  concerned  were  made  to  draw  a  sharp 
line  between  Englishmen  and  non-Englishmen  and  between 
their  interests  and  the  separate  interests  of  the  king.  This 
new  conception  of  the  relation  of  the  king  to  the  community 
of  the  governed  grew  more  clear  and  controlling  as  the  reign 
went  on,  but  then  as  always  the  practical  sense  of  the  race 

s  Cheyney,  Readings,  217-221. 


ABUSES  OF  HENRY  III  149 

led  it  to  express  in  legal  form  the  ruling  interests  of  the 
particular  moment  rather  than  to  make  a  theoretically  com- 
plete statement.  To  bind  the  king  to  regard  the  interests  of 
the  community,  they  made  a  new  application  of  the  principle 
of  Magna  Carta. 

At  first  it  seems  to  have  been  felt  that  an  explicit  renewal 
of  his  engagements  to  keep  the  Great  Charter  would  limit 
the  king's  disposition  to  commit  the  abuses  of  which  they 
complained.  The  first  "  confirmation  of  the  charter "  in 
this  sense^  occurred  in  1237,  the  first  of  many  similar  pledges 
during  the  next  two  centuries.  The  king  granted  the  renewal 
in  a  special  charter  which  was  called  the  "  little  charter," 
and  the  archbishop  of  Canterbury  in  a  solemn  service 
.renewed  the  earlier  excommunication  of  all  who  should  offend 
against  it.  But  it  was  soon  found  that  such  a  promise  from 
the  king  was  not  sufficient.  The  question  of  especial  diffi- 
culty then  arose  which  was  the  same  in  Henry's  case  as 
in  his  father's  —  how  to  deal  with  a  king  who  would  not 
keep  his  promises.  It  was  also  now  true  that  the  abuses 
complained  of  were  not  the  same  as  in  the  earlier  reign.  It 
was  not  so  much  specific  violations  of  feudal  law  of  which 
Henry  III  was  guilty  as  abuses  in  the  conduct  of  govern- 
ment, waste  of  the  income  of  the  state  and  the  sacrificing 
of  the  interests  of  the  community  to  his  own  selfish  interests 
and  those  of  his  favorites. 

In  these  circumstances  it  was  soon  felt  that  if  the  abuses 
were  to  be  really  ended  some  form  of  institutional  control  of 
the  king  must  be  found  like  that  which  the  earlier  barons  had 
embodied  in  chapter  61  of  the  Charter.  That  chapter  had 
been  dropped  from  the  reissues  but  it  and  its  method  had 
not  been  forgotten.  Its  plan  had  been  to  subject  the  king 
in  case  he  persisted  in  the  violation  of  his  promises  to  the 
control  of  a  committee  of  barons  not  responsible  to  himself. 
At  this  time  the  difficulty  concerned  the  general  conduct  of 
government  and  in  1244  the  great  council  devised  and  put 
into  formal  shape  a  more  extensive  modification  of  the  con- 


150      GROWTH  OF  CONSTITUTION  AND  LAW 

stitution.4  The  great  officers  of  the  state,  appointed  by  the 
great  council  and  responsible  to  it,  were  to  be  always  pres- 
ent with  the  king  and  were  really  to  conduct  the  govern- 
ment in  his  name.  The  great  council,  in  other  words,  took 
the  conduct  of  government  out  of  the  hands  of  the  king, 
and  made  sure  by  a  positive  constitutional  device  that  it 
should  be  conducted  in  harmony  with  its  own  wishes.  The 
striking  similarity  of  the  result  intended  with  that  achieved 
by  the  present  English  constitution  is  at  once  apparent,  that 
is  the  conduct  of  government  in  the  name  of  the  king  by  what 
is  really  a  committee  of  parliament,  but  it  must  be  noticed 
that  the  process  was  decidedly  different.  In  the  modern  con- 
stitution no  positive  institution  limits  the  king  and  no  officer 
of  the  state  is  in  form  responsible  to  parliament.  The 
result  foreshadowed  in  1244  was  to  be  the  goal  of  the  Eng- 
lish constitution,  and  these  early  institutional  experiments 
lead  directly  to  it,  but  a  better  method  of  securing  the 
result  was  to  be  in  time  discovered. 

We  are  not  sure  that  the  plan  drawn  up  in  1244  was 
actually  put  into  operation.  If  it  was,  it  was  very  soon 
got  rid  of  by  the  king  and  the  old  abuses  continued  with 
increasing  weight.  Unsuccessful  attempts  at  similar  reforms 
were  made  at  intervals  but  it  was  not  until  1258  that  a 
thorough-going  effort  was  made  to  set  up  machinery  to 
control  the  king.  At  that  time  what  may  be  called  a  com- 
plete constitution  was  devised  which  continued  more  or  less 
fully  in  force  for  many  months.  The  great  council,  "jpar- 
liament  "  it  was  then  beginning  to  be  called,  met  at  London 
in  April  1258,  and  was  besought  by  the  king  to  aid  him  in 
his  financial  difficulties.  These  were  then  especially  great 
not  merely  because  of  his  extravagance  and  his  gifts  to 
foreign  favorites,  then  very  influential  at  court.  He  had 
gratuitously  increased  them  by  his  acceptance  of  the  king- 
dom of  Sicily  from  the  pope  for  his  second  son  Edmund,  a 
kingdom  which  it  was  necessary  to  conquer  from  the  Hohen- 
«  Stubbs,  8.  C,  326-327. 


PROVISIONS  OF  OXFORD  151 

staufen.  The  barons  refused  to  grant  the  king  money  and 
demanded  definite  reforms.  Henry  was  obliged  to  yield  and 
a  commission  of  twenty-four,  twelve  named  by  the  king  and 
twelve  by  the  barons,  was  appointed  to  put  the  necessary 
changes  into  form.  This  commission  reported  to  an  ad- 
journed meeting  of  the  great  council  at  Oxford  in  June,  and 
the  constitution  which  was  then  adopted  is  known  as  the 
Provisions  of  Oxford.5 

The  new  constitution  virtually  put  the  kingship,  as  has 
been  often  said,  into  commission.  The  king  was  practically 
suspended  and  his  place  in  the  government  was  taken  by  a 
series  of  committees  and  commissions  all  responsible  to  the 
great  council,  though  they  acted  in  the  name  of  the  king. 
As  a  standing  committee,  constantly  to  supervise  all  depart- 
ments of  government  and  to  be  an  immediate  check  upon  the 
king,  a  council  of  fifteen  was  appointed,  nine  of  whom  were 
from  the  barons'  party.  Another  body  of  twelve  was  com- 
missioned to  meet  with  the  fifteen  three  times  a  year  to 
exercise  the  functions  and  authority  of  parliament.  The 
original  twenty-four  was  continued  to  consider  questions 
affecting  the  church  and  a  second  twenty-four  appointed  to 
decide  what  should  be  done  about  the  aid  asked  for  by  the 
king.  The  great  executive  officers,  justiciar,  chancellor,  and 
treasurer,  and  the  local  executive  officers,  the  sheriffs,  were 
to  be  appointed  by  and  made  responsible  to  the  new  govern- 
ment. 

It  will  be  evident  that  this  new  constitution  elaborated  still 
further  what  had  been  crudely  begun  in  1215  and  somewhat 
elaborated  in  1244.  It  removed  from  power  a  king  who 
could  not  be  trusted  and  set  up  a  government  directly 
responsible  to  parliament  which,  though  not  at  that  time 
technically  a  representative  body  in  the  later  sense,  was  still 
fairly  representative  of  that  portion  of  the  community  which 
had  been  until  then  the  only  one  to  have  a  direct  share  in 
carrying  on  the  state.  As  described  the  experiment  of  1258 
BStubbs,  S.  C,  369-387;  A.  and  S.,  56-62. 


152      GROWTH  OF  CONSTITUTION  AND  LAW 

is  the  highest  success  reached  by  the  thirteenth  century  in 
attempting  to  embody  in  practical,  workable  institutions  the 
underlying  idea  of  Magna  Carta.  In  this  sense  it  became 
a  controlling  precedent  in  future  experimenting  in  the 
medieval  method,  that  is,  in  trying  to  find  an  institutional 
embodiment  of  the  limited  monarchy  in  forms  of  direct 
responsibility  to  parliament,  instead  of  according  to  the 
modern  method  of  indirect  responsibility. 

As  a  constitution  in  actual  operation  the  Provisions  of 
Oxford  were  short-lived.  The  king  was  able  before  long  to 
reconstruct  a  party  against  the  barons,  and  in  1261  he 
refused  to  be  longer  bounclby  the  Provisions  and  civil  war 
began.  Towards  the  end  of  1263  it  was  agreed  to  submit 
the  issues  between  the  king  and  the  barons  to  the  arbitration 
of  Louis  IX  of  France,  but  the  barons  refused  to  accept  his 
decision  against  the  Provisions,  though  he  confirmed  the 
king's  obligation  to  the  Great  Charter,  and  the  war  con- 
tinued. In  the  spring  of  l^jfiit,.  the  baronialarmy  under  the 
command  of  Simon  deMontfort,  Earl  of  Leicester,  gained  a 
decisive  victory  over  the  king's  forces  at  the  battle  of  Lewes, 
capturing  Henry  himself  and  his  eldest  son,  Edward.  For 
a  little  more  than  a  year,  Simon  de  Montfort  held  the  king 
a  prisoner  and  himself  conducted  the  government  in  his  name, 
a  task  beset  with  difficulties  and  resulting  in  no  constitutional 
advance  except  in  the  history  of  parliamentary  origins  soon 
to  be  considered. 

After  the  battle  of  Evesham  in  August,  1265,  in  which 
Simon  de  Montfort  was  killed  and  his  army  dispersed, 
Edward,  to  whose  military  skill  the  victory  was  due,  became 
the  leading  influence  in  the  conduct  of  government.  There 
are  facts  which  seem  to  imply  that  all  along  he  had  sympa- 
thized with  the  demands  of  the  insurgent  party  on  many 
points  of  real  abuse  and  in  1267  a  considerable  number  of 
reforms  were  embodied  in  the  statute  of  Marlborough,  the 
first  of  the  series  of  great  statutes  of  the  second  half  of  the 
thirteenth  century.     None  of  the  institutional  changes  of  the 


BARONIAL  OPPOSITION  153 

Provisions,  however,  which  attempted  to  fix  limitations  upon 
the  king  were  accepted,  and  the  constitutional  effects  of  the 
crisis  were  confined  to  a  vivid  renewal  of  the  idea  of  a  limited 
monarchy  and  the  creation  of  a  precedent  of  its  actual,  if 
temporary,  operation.  To  these  more  definite  results  should 
be  added  the  beginning  of  a  less  tangible  but  not  less  effective 
influence  —  the  tradition  of  baronial  0QHQsitiaft-to-4he  crewn. 
By  this  is  meant  not  the  opposition  of  feudal  barons  who 
were  seeking  independence  of  royal  control  in  little  princi- 
palities of  their  own,  but  the  opposition  of  a  great  class, 
having  a  distinct  feeling  of  corporate  unity  and  professing 
to  speak  for  the  whole  communit}'  of  the  governed,  while  it 
demanded  for  itself  a  definite  share  in  determining  govern- 
ment policies  and  in  carrying  out  national  administration. 
The  baronial  party  in  the  struggle  with  Henry  III  and  in 
the  following  generations  seems  more  often  than  not  to  be 
selfishly  pursuing  its  own  interests  and  to  have  in  mind  no. 
larger  result  than  the  advantage  of  the  moment,  but  it  is  in 
the  line  of  this  opposition  that  precedents  of  controlling  the 
king  accumulate,  and  great  constitutional  principles  are 
embodied  in  statute  and  formal  document.  The  baronial 
opposition,  with  no  real  foresight  of  the  final  result  and 
very  little  consciousness  of  the  meaning  of  their  policies,  did 
furnish  the  protection  and  the  motive  force  of  the  constitu- 
tion which  was  forming  until  such  time  as  parliament,  more 
consistent  and  continuous  in  policy  though  foreseeing  the  end 
no  more  clearly,  was  ready  to  assume  the  defence  and  the 
development  of  the  constitution. 

While  the  conflict  between  king  and  barons  determined  the 
larger  constitutional  results  of  the  reign,  numerous  less 
conspicuous  changes  were  taking  place,  of  decided  institu- 
tional significance.  It  was  an  age  of  the  rapid  decline  of 
political  feudalism.  In  every  direction  the  state  was  b"ecom- 
ing  independent  of  the  baron's  services  which  had  once  been 
indispensable  to  the  carrying  on  of  its  business.  No  longer 
was  the  feudal  military  service  even  the  chief  dependence  of 


154      GROWTH  OF  CONSTITUTION  AND  LAW 

the  state.  The  mercenary  soldier  was  of  greater  value,  and 
more  and  more  use  was  being  made  of  the  baron  and  his 
men  who,  while  not  exactly  mercenary  soldiers,  would  remain 
in  the  field  at  pay  after  the  feudal  term  of  their  service  had 
expired.  So  extensive  was  the  decline  in  the  value  of  this 
service  that  the  baron  was  less  and  less  frequently  called  upon 
to  send  his  entire  service  due  into  the  field,  and  precedents 
were  rapidly  being  established  that  his  full  obligation  could 
be  satisfied  with  only  a  fraction  of  his  old  quota  of  knights. 

In  the  matter  of  feudal  court  service  the  change  was  no 
less  rapid.  The  great  council,  indeed,  in  its  judicial  capac- 
ity had  not  been  affected  by  any  change  of  membership  or 
procedure,  and  the  same  thing  is  apparently  true  of  the 
small  council  when  acting  as  a  court.  These  were  still  the 
old  assembly  courts  of  the  feudal  ages.  But  when  we  con- 
sider the  new  judicial  institutions  and  the  offshoots  of  the 
council,  it  is  clear  that  progress  was  rapid  along  the  same 
lines  of  development  that  had  been  begun  in  the  twelfth  cen- 
tury. The  professional  justice,  was  steadily  becoming  more 
and  more  the  chief  element  in  these  newer  courts,  and  the 
theory  of  a  baronial  assemblva  more  and  more  discarded 
fiction.  There  was  no  longer  any  pretence~that  these  courts 
could  serve  as  a  court  of  peers  for  the  baron ;  that  could 
be  found  only  in  one  of  the  forms  of  the  small  council  or  in 
the  great  council.  The  body  of  the  common  law  had  greatly 
increased  by  multiplication  of  writs  and  clearer  distinction 
between  actions,  and  by  an  enormous  mass  of  decided  cases 
recorded  in  the  rolls  of  the  court,  and  it  demanded  as  it 
had  never  done  before  a  special  knowledge. 

The  second  great  treatise  on  the  common  law,  Bracton, 
written  about  the  middle  of  the  century,  while  following  the 
general  lines  of  the  first,  Glanvill,  is  man}7  times  its  size, 
reveals  a  much  more  developed  law,  and  cites  hundreds  of 
precedents  from  decided  cases.0  But  the  forms  of  the  com- 
mon law  were  beginning  to  lose  their  elasticity  and  power  of 
c  Extracts,  Stubbs,  8.  C,  411-416. 


DECLINE  OF  FEUDAL  INFLUENCE  155 

adaptation  to  all  sorts  of  cases  which  they  had  once  had  as 
direct  expressions  of  the  king's  prerogative,  and  were  grad- 
ually assuming  a   rigidity  which  demanded  that  every   new 
case  should  be  brought  within  their  formulae,  if  it  was  to 
be  tried  in  a  common  law  court.     To  compensate  for  the  loss 
of  these  courts,  as  freely  acting  organs  of  the  king's  preroga- 
tive power  to  do  justice  to  every  man,  the  small  council  was 
opening  itself  more  and  more  freely  to  the  work  of  general 
justice  through  petitions  to  the  king  for  redress  in  special 
cases  which  were  referred  to  it  —  the  line  of  the  growth  of 
the   chancery   system   and   equity   jurisprudence.     In   crim- 
inal procedure  a  great  change  had  been  begun  by  the  drop- 
ping of  the  ordeal  as  a  means  of  testing  the  verdict  of  the 
accusing   jury,   in   obedience   to    a    decision    of    the    church 
against  it,  but  the  courts  as  yet  were  only  experimenting 
with  substitutes  and  it  was  another  century  before  our  pres- 
ent system  of  a  double  jury,  the  grand  or  accusing  jury  and 
the  petty  jury,  was   settled  upon.     There  wras   during  the 
reign  a  great  increase  in  the  use  of  the  assizes  and  of  spe- 
cially  commissioned  assize  justices,   while  the  general  eyre 
with  a   wider  commission  visited   the   counties   at  intervals, 
exercising  for  a  long  time  even   the  prerogative  of  equity 
justice,  because  it  was  considered  peculiarly  to  represent  the 
king.     All  this  development  of  courts  and  law  was  free  of 
feudal  influence,  or  was  affected  by  it  only  slightly. 

On  the  side  of  the  private  jurisdiction  of  the  lord,  a  similar 
decline  of  feudal  influence  and  feudal  interest  is  apparent. 
The  documents  of  the  revolution  which  led  to  the  Provisions 
of  Oxford  in  1258  have  a  great  deal  to  say  about  private 
jurisdiction  but  it  is  plain  that  the  interest  is  very  different 
from  that  expressed  in  the  Charter  of  1215.7  The  purpose 
of  the  baron  is  now  not  to  maintain  an  independence  of  the 
king  nor  to  protect  a  position  which  may  be  called  political, 
but  his  interest  is  almost  wholly  financial.  The  great  point 
at  issue  is  court  service,  suit  of  court,  and  the  issue  is  not 
7  Stubbs,  S.  C,  389-394, 


156      GROWTH  OF  CONSTITUTION  AND  LAW 

between  the  baron  and  the  king  but  between  the  baron  and 
the  suitors  of  his  court.  The  suitors  are  trying  to  rid  them- 
selves of  the  service ;  the  baron  is  having  great  difficulty  in 
maintaining  his  rights.  The  disputes  between  them  seem 
to  concern  most  frequently  the  public  court  in  private  hands 
and  the  probability  is  that  the  process  was  already  well  under 
way  which  by  the  end  of  the  century  had  practically  extin- 
guished the  other  private  jurisdiction,  the  baronial,  that  is, 
the  feudal  jurisdiction  proper,  reducing  it  to  a  mere  shadowy 
survival  of  itself  in  the  so  called  court  baron.  This  result 
was  brought  about  in  reality  by  the  development  of  the  royal 
common  law  jurisdiction,  against  which  chapter  34  of  Magna 
Carta  had  appealed  in  vain  to  the  old  feudal  law.  The  sanc- 
tion of  the  possessory  assizes  in  chapter  18  of  the  Charter 
was  a  fatal  concession,  and  the  baronial  justice  could  not 
maintain  itself  against  the  more  secure  and  definite  justice 
of  the  king's  courts.  Already  also  the  Quo  warranto  pro- 
ceedings had  been  begun  by  the  king  against  the  public  court 
in  baronial  possession,  by  which  the  lord  was  required  to 
prove  by  legal  evidence  his  right  to  hold  the  court,  and  by 
which  in  the  next  reign  many  of  the  "  liberties "  were 
absorbed  into  the  local  jurisdiction  of  the  state. 

On  the  side  of  administrative  institutions,  the  same  trans- 
formation was  taking  place  from  the  feudal  to  the  modern 
administrative  system.  It  is  not  possible  to  be  quite  so 
definite  here  as  on  some  other  subjects  because  the  adminis- 
trative history  of  the  thirteenth  century  has  not  as  yet  been 
thoroughly  studied.  We  can,  however,  find  in  the  reign  of 
Henry  the  beginnings  of  changes  with  whose  later  stages 
we  are  more  familiar.  As  the  manor  held  by  military  service 
was  the  feudal  endowment  of  the  state's  army,  so  the  "  ser- 
jeanty  "  was  the  feudal  endowment  of  administration.  That 
the  state  was  now  getting  other  and  better  service  for  its 
administrative  needs  than  the  feudal,  as  it  was  for  its  military 
needs,  is  clear  from  the  transformation  into  a  money  pay- 
ment, now  beginning  to  be  frequent,  of  the  service  by  which 


ADMINISTRATIVE  CHANGES  157 

the  serjeanty  was  held — "  arrentation  "  as  it  was  called. 
The  transformation  also,  which  was  proceeding  slowly,  of 
some  of  the  great  offices  of  the  household  into  honorary  titles 
of  empty  rank,  while  the  duties  were  performed  by  sub- 
ordinates actually  members  of  the  household,  is  an  indica- 
tion of  the  same  change.  Some  of  the  offices  —  chancellor, 
treasurer  —  underwent  a  different  transformation  by  which 
they  became  still  more  than  ever  working  offices,  but  it  was 
a  change  of  the  same  significance. 

One  differentiation  which  was  slowly  going  on  in  this 
period  and  which  has  not  yet  been  sufficiently  studied,  the 
differentiation  of  the  small  council  into  three  later  bodies, 
the  court  of  king's  bench,  the  chancery  court  and  the  admin- 
istrative or  advisory  council,  is  a  change  both  judicial  and 
administrative.  The  later  council  continues  the  earlier  so 
far  as  its  general  functions  and  place  in  the  government  are 
concerned.  We  may  say  indeed  that  it  remains  undifferen- 
tiated, that,  having  thrown  off  the  special  exercise  of  certain 
functions  to  new  bodies,  it  still  retains  the  power  to  exercise 
these  same  functions  at  will  because  it  is  the  peculiar  organ 
of  the  royal  prerogative.  The  change  which  particularly 
affects  the  council,  as  council,  in  the  reign  of  Henry  III  is 
the  much  greater  emphasis  which  begins  to  be  placed  upon  its 
conciliar  function,  upon  its  function  of  advising  the  king  and 
of  taking  an  active  part  in  directing  the  policy  of  the  gov- 
ernment. Councillor  in  this  sense  comes  to  be  a  distinct 
office  to  which  appointments  are  consciously  made  and  for 
which  a  special  oath  of  office  is  prescribed,  though  no  dis- 
tinct advisory  council  was  formed. 

In  1272  Henry  was  succeeded  by  his  son  Edward  I  who 
had  served  a  long  apprenticeship  in  the  business  of  gov- 
ernment. His  reign  of  thirty-five  years  is  one  of  the  great- 
est in  the  constructive  work  accomplished  both  in  the  politi- 
cal and  the  constitutional  history  of  England.  Upon  the 
constitutional  side  the  reign  affords  us  two  topics  which 
outweigh  all  others  in  importance,  the  development  of  the 


158      GROWTH  OF  CONSTITUTION  AND  LAW 

common  law  and  of  judicial  institutions,  and  the  origin  and 
growth  of  parliament.  In  this  chapter  we  have  to  discuss 
the  former  topic. 

Edward  has  been  called  the  English  Justinian  and  in  a 
sense  justly,  but  the  title  is  not  broad  enough.  The  legal 
work  for  which  Justinian  is  particularly  famous  was  codifica- 
tion, not  creative  advance,  but  we  must  recognize  in  Edward 
both  these  grounds  01  fame.  In  a  series  of  great  statutes 
in  the  first  half  of  his  reign  the  past  progress  of  the  common 
law  was  recorded  in  a  way  that  may  be  rightly  called  codifi- 
cation, if  the  meaning  of  that  word  is  not  too  narrowly 
pressed.  It  was  not  the  whole  body  of  the  existing  law  as  it 
had  been  built  up  by  the  courts  which  was  taken  up  into  these 
statutes.  It  was  rather  a  series  of  matters  representing  the 
active  advance  of  that  generation,  but  matters  of  such  wide 
reaching  influence  both  upon  law  and  upon  judicial  institu- 
tions that  in  a  way  they  both  sum  up  the  past,  and  cause  the 
statutes  to  become  a  new  starting  point  for  future  growth. 
Much  substantive  law,  however,  which  is  given  us  in  Bracton 
as  clearly  and  definitely  established  and  which  goes  on  into 
the  future  body  of  the  common  law,  finds  no  place  in  the 
statutes  and  much  in  them  is  either  new  to  Bracton  or 
records  a  further  stage  in  his  law. 

The  word  statute  was  being  used  in  Edward's  time  for  any 
kind  of  a  regulation,  issued  by  the  authority  of  the  govern- 
ment and  intended  to  be  permanent  without  reference  to  the 
way  in  which  it  came  into  existence  and  therefore  without 
the  exact  and  technical  meaning  which  it  later  assumes.  The 
name  has  been  accepted  for  these  acts  by  later  times  and  not 
improperly  so  because  of  their  influence  on  the  development 
of  the  law.  It  must  not  be  supposed,  however,  in  every  case 
to  indicate  legislative  action  by  even  the  rudimentary  parlia- 
ment of  that  time.  Reckoned  in  this  way  the  list  of  the 
chief  statutes  of  the  first  twenty  years  is  a  long  one:  West- 
minster I,  named  from  the  place  of  its  enactment,  in  1275, 
a  comprehensive  statute  covering  many  points,  supplemented 


THE  "  HUNDRED  ROLLS  "  159 

the  next  year  by  the  statute  of  Rageman ;  Gloucester  in 
1278,  dealing  with  the  assizes  and  with  the  Quo  warranto 
proceedings;  Mortmain,  or  De  viris  religiosis,  1279;  Acton 
Burnell,  or  De  mercatorlbus,  enacting  a  custom  which  had 
been  long  observed  in  many  places  for  registering  debts  due 
to  merchants  for  collection  without  the  delay  of  a  suit  at 
law,  in  1283;  Wales,  introducing  the  common  law  into  the 
country,  and  Rhuddlan,  prohibiting  the  trial  of  common  law 
cases  in  the  exchequer  court,  unless  the  king  had  a  direct 
interest  in  them,  in  1284;  Westminster  II,  a  comprehensive 
statute  dealing  with  land  and  many  other  subjects,  Winches- 
ter, dealing  with  arms  and  police,  and  Circumspecte  agatis 
with  the  relation  of  the  ecclesiastical  to  the  secular  courts, 
in  1285 ;  and  Westminster  III,  or  Quia  emptores  in  1290. 

One  of  the  first  acts  of  Edward  after  he  began  to  reign 
was  to  take  up  with  vigor  an  inquiry  which  had  been  begun 
by  his  father  but  not  pushed  to  any  conclusion.  He  sent 
commissioners  throughout  the  kingdom  to  inquire  in  each 
locality  by  the  now  familiar  process  of  the  inquest  what 
"  liberties  "  or  franchises  in  the  hands  of  private  lords  inter- 
fered with  the  course  of  public  justice.  The  returns  from 
these  inquiries  were  recorded  in  the  "  Hundred  Rolls,"  a 
collection  of  local  reports  of  almost  as  great  value  to  us 
for  the  thirteenth  century,  as  the  Domesday  returns  for  the 
eleventh.  Upon  these  returns  were  based  the  Quo  warranto 
proceedings.  These  were  given  their  first  form  by  the  sta- 
tute of  Gloucester  8  which  authorized  other  commissioners  to 
go  over  the  country  and  call  upon  the  lords  to  show  by  what 
right  they  claimed  to  exercise  these  functions  of  public 
justice.  Already  it  had  become  firmly  established  in  English 
law  —  it  is  clearly  stated  by  Bracton  9  —  that  prescription 
by  possession  through  any  length  of  time  could  not  estab- 
lish a  right  against  the  king.  The  lawyers  who  represented 
the    Crown   before   the   commissioners   insisted   that   definite 

s  Stubbs,  S.  C,  449. 
•  Cf.  Stubbs,  S.  C,  413. 


160      GROWTH  OF  CONSTITUTION  AND  LAW 

proof  by  charter,  or  other  legal  evidence,  of  a  grant  of  the 
franchise  must  be  presented  by  the  baron  or  the  rights  would 
be  resumed  by  the  king. 

There  were  few  cases  in  which  the  required  evidence  could 
be  produced  and  the  inquiry  excited  very  bitter  opposition 
from  the  barons.  Edward,  however,  did  not  care,  or  think 
it  wise,  to  push  his  advantage  to  the  extreme.  In  1290 
he  agreed  that  evidence  of  continuous  use  from  the  corona- 
tion of  Richard  I,  that  is  for  a  full  century,  should  be  a 
sufficient  proof  of  title.  But  if  local  jurisdiction  was  not  in 
many  cases  recovered  from  private  hands,  the  dependence 
of  the  right  upon  a  royal  grant,  and  the  superior  claim  of 
the  state  to  exercise  it,  were  sharply  emphasized,  and  the 
extension  of  franchises  by  usurpation  or  the  creation  of  new 
ones,  which  had  been  frequent  in  the  past,  was  checked.  The 
very  fact  that  this  inquiry  could  be  made,  upon  such  prin- 
ciples and  with  so  much  success,  reveals  the  great  progress 
which  had  been  made  in  the  development  of  the  judicial 
system,  of  national  jurisprudence,  and  of  the  conception  of 
the  sphere  and  function  of  the  state,  in  the  century  since 
Henry  II  began  his  reforms.  It  must  be  noticed  that  these 
proceedings  concerned  only  public  jurisdiction,  the  hundred 
court  in  private  hands,  which  included  however  usually  such 
things  as  the  view  of  frankpledge,  the  return  of  royal  writs 
and  the  trial  of  pleas  of  the  crown,  and  the  punishment  of 
the  condemned,  in  many  cases  even  capital  punishment,  or 
the  collection  and  retention  of  amercements  in  such  pleas. 
Manorial  jurisdiction  proper,  that  is  dominial  jurisdiction, 
with  its  interest  in  economic  matters,  went  on  undisturbed  and 
existed  in  the  colonies  even  after  the  settlement  of  America. 
So  also  there  continued  without  interference  the  baronial 
or  feudal  jurisdiction  proper,  now  reduced  to  considering 
the  cases  of  the  small  freeholders  of  practically  no  more  than 
manorial  grade,  and  exercised  in  close  connection  with  the 
manorial  court.  The  sole  relics  of  its  former  greatness  were 
the  name  "  court  baron  "  and  the  rule  requiring  two  free- 


LAND  STATUTES  161 

holders  at  least  to  constitute  the  court  since  unfree  tenants 
could  not  do  the  business  of  feudal  tenants,  though  the  feudal 
tenant  proper  no  longer  attended. 

No  part  of  Edward's  legislation  had  a  more  profound 
influence  on  the  future,  and  no  part  of  it  remains  to  the 
present  day  in  force  so  nearly  in  the  form  which  he  gave  to 
it,  as  his  statutes  affecting  land.  These  laws  were  adopted 
to  settle  a  series  of  problems  which  had  been  created  by  the 
decline  of  feudalism,  and  the  consequent  disappearance  of 
what  had  once  been  the  chief  interest  in  land,  the  political, 
leaving  the  merely  economic  interest  to  survive.  A  policy 
of  strengthening  the  crown  at  the  expense  of  the  baronage 
has  been  attributed  to  Edward  in  this  legislation,  and  so 
keen  was  his  political  and  legal  insight  that  we  may  well 
believe  that  he  saw  more  clearly  than  most  rulers  could  have 
done  that  the  final  result  would  be  to  his  advantage,  but 
with  the  decline  of  feudalism  the  same  problems  arose  in 
most  of  the  states  of  Europe  and  were  solved  in  the  same 
way.  Indeed  English  legislators  had  been  conscious  of  them 
and  tried  to  solve  them  before  Edward  was  born. 

The  transformation  from  feudal  to  modern  relations  was 
working  decidedly  to  the  advantage  of  the  tenant,  the  pos- 
sessor of  the  dominium  utile,  and  to  the  disadvantage  of  the 
lord.  The  feudal  law  regarded  the  tenant  strictly  as  tenant 
and,  baldly  interpreted,  allowed  him  none  of  the  rights  of 
an  owner.  The  more  modern  tendency,  and  by. the  opening 
of  the  thirteenth  century  the  tendency  was  beginning  to  be 
strongly  felt,  was  to  look  upon  the  tenant  as  really  owner 
and  to  grant  him  all  the  rights  of  an  owner.  This  tendency 
was  in  the  end  to  triumph,  but  the  legislation  of  Edward  I 
represents  a  reaction  against  it,  a  reaction  which  perpetuated 
a  feudal  influence  upon  our  land  law  greater  than  has  sur- 
vived to  the  present  time  in  most  countries.  Parliament  was 
in  the  hands  of  the  greater  barons  and,  with  the  sympathy 
of  the  king  as  the  greatest  of  landlords,  they  were  able  to 
shape  legislation  to   protect  their  own  interests.     But   we 


162      GROWTH  OF  CONSTITUTION  AND  LAW 

must  remember,  if  we  would  understand  not  merely  the  begin- 
ning but  the  history  of  our  land  law  and  of  the  other  phases 
of  law  which  have  derived  from  it  down  to  the  nineteenth 
century,  that  the  sympathy  of  the  lawyers  and  of  the  courts 
was  on  the  side  of  the  tenant  and  of  his  right  to  do  with  his 
land  freely  as  he  would.  Indeed  it  is  no  great  exaggeration 
to  say  that  the  development  of  our  land  law  has  been  a  duel 
between  the  legislature  and  the  courts. 

The  dates  of  the  legislation  having  been  given,  we  may 
proceed  here  without  regard  to  date  from  the  simpler  to  the 
more  complex  of  the  problems  to  be  solved.  As  the  economic 
interest,  the  interest  in  income,  grew  in  relative  importance, 
the  value  in  the  eyes  of  the  landlord  of  the  feudal  incidents, 
relief,  wardship,  marriage,  escheat,  rapidly  increased.  In 
original  feudalism  these  incidents  had  not  been  considered 
as  an  economic  return  but  as  a  proof  that  the  lord  was 
owner,  and  the  vassal  only  tenant.  Now  it  Avas  no  longer  of 
advantage  to  have  vassals,  but  of  greater  advantage  than 
ever  to  have  a  good  income.  Escheat  on  the  extinction  of 
the  vassal's  line,  or  as  a  punishment  for  felony,  was  of  espe- 
cial importance  because  it  brought  the  fief  with  its  whole 
capital  value  back  into  the  lord's  possession ;  wardship  was 
the  next  most  lucrative  because  it  gave  to  the  lord  the  whole 
income  of  the  fief  during  the  minority  of  the  heir,  subject 
only  to  his  duty  to  bring  up  his  vassal's  children  in  their 
proper  station ;  marriage  went  with  wardship  or  with  the 
succession  of  female  heirs  and  could  often  by  a  fortunate  sale 
be  made  to  equal  a  large  fraction  of  the  capital  value ;  the 
relief  was  of  the  least  importance  but  it  might  be  made  to 
bring  in  once  in  a  generation  a  3rear's  income  of  the  fief. 

The  simplest  of  the  problems  was  created  when  the  tenant 
wished,  as  so  many  medieval  tenants  did,  to  give  a  part  or  all 
of  his  land  to  a  church  or  monastery.  The  church  or  mon- 
astery never  died ;  it  never  married.  None  of  the  feudal 
incidents,  escheat,  Avardship,  marriage,  or  relief,  could  ever 
occur  to  the  advantage  of  the  lord.     The  land  had  passed 


ALIENATION  OF  LAND  163 

into  a  dead  hand ;  it  had  been  granted  "  in  mortmain."  For 
this  there  was  a  simple  remedy,  and  it  was  generally  adopted 
throughout  Europe.  The  statute  of  Mortmain  forbad 
wholly  such  alienations  of  land  without  the  express  consent 
of  the  overlord,  on  pain  of  forfeiture  to  him.10  It  was  a 
simple  remedy,  if  it  could  be  enforced,  but  in  practice  licences 
were  frequently  granted,  and  also  the  statute  had  its  full 
share  in  developing  the  measure  by  which,  through  the  ingen- 
uity of  the  law-yers  and  the  connivance  of  the  courts,  this 
whole  legislation  was  defeated. 

The  problem  which  the  statute  Quia  emptores  was  intended 
to  solve  was  closely  similar.  Original  feudalism  had  not  been 
inclined  to  check  the  process  of  subinfeudation,  the  liberty  of 
the  tenant  to  create  subordinate  fiefs  within  his  own  fief  to 
be  held  of  him  as  lord  by  the  same  kind  of  services  as  those 
by  which  he  himself  held.  Indeed  the  logic  of  the  feudal 
system  required  that  this  process  should  go  on,  as  far  as  it 
could,  if  the  business  of  the  state  was  to  be  adequately  cared 
for.  It  was  the  change  in  feudal  values  which  created  the 
problem.  If  B,  who  holds  of  A,  enfeoffs  C  in  a  part  of  his 
holding,  then  if  B's  land  escheats  or  wardships  occurs  in 
his  line,  A  loses  the  value  of  all  that  part  which  is  held  by  C. 
He  can  claim  only  the  services  by  which  C  has  agreed  to  hold 
of  B,  much  less  of  course  than  the  capital  or  revenue  value. 
The  statute  of  Quia  emptores  was  an  attempt  of  the  over- 
lords to  save  themselves  from  a  portion  at  least  of  this  loss.11 
It  provides  that  in  the  example  given,  and  all  such  cases,  B 
may  freely  alienate  his  land  but  when  he  does  C  shall  not  be 
his  tenant  but  the  tenant  of  A  owing  to  him  the  same  propor- 
tion of  B's  service  that  his  land  is  of  B's  land.  That  is,  the 
statute  really  means  that  of  the  new  fief  created  by  subin- 
feudation all  the  future  feudal  incidents  shall  accrue  not  to 
B  but  to  his  lord  A.  Theoretically  the  lord  had  always  been 
able  to  protect  himself  from  this  loss,  if  he  desired  to  do  so, 

lOStubbs,  8.  C.  450-452;  A.  and  S.  71-72. 
uStubbs,  S.  C,  473-474;  A.  and  S.,  81-82. 


164      GROWTH  OF  CONSTITUTION  AND  LAW 

because  the  tenant  was  obliged  to  get  his  consent  to  alienate, 
but  except  in  case  of  tenants  in  chief  of  the  king  the  prin- 
ciple had  not  been  practically  enforced.  Now  the  statute 
granted  to  all  who  held  in  fee  simple,  free  right  to  alienate 
subject  to  the  new  condition.  Nothing  was  said  about  the 
king's  tenants,  who  still  required  permission  to  alienate,  but 
in  practice  the  rest  of  the  statute  was  applied  to  them  also 
so  that  all  subinfeudation  in  the  feudal  sense  was  brought  to 
an  end.  The  natural  tendency  of  such  a  practice  was  to 
bring  by  degrees  all  holders  of  land  by  feudal  tenure  into 
direct  relationship  with  the  king  and,  while  multiplying  the 
number  of  tenants  in  chief,  to  strike  a  deadly  blow  at  feudal 
independence  and  the  extension  of  feudal  privilege. 

The  statute  De  donis  conditionalibiis,  a  part  of  the  statute 
of  Westminster  II,  concerned  a  more  complex  matter  but  one 
even  more  important  for  the  future.12  It  had  been  a  com- 
mon feudal  practice,  the  feudal  law  taking  up  in  this  case, 
as  it  did  in  many  others,  principles  of  earlier  Teutonic  law, 
for  the  grantor  to  convey  to  the  purchaser,  not  the  full  fee 
simple,  but  a  limited  right  of  ownership.  The  fundamental 
principles  of  feudalism  made  it  logical  for  the  seller  to  attach 
any  kind  of  conditions  he  pleased  to  the  grant  since,  even 
where  the  full  fee  simple  was  conveyed,  various  conditions  of 
service  and  fealty  were  attached  which  must  be  fulfilled  or 
the  land  escheated.  As  the  economic  side  of  feudalism  began 
to  outbalance  the  political,  it  came  to  be  more  and  more 
clearly  to  the  advantage  of  the  grantor  to  increase  the 
chances  of  the  land's  coming  back  into  his  ownership  by 
escheat.  At  the  same  time  the  purchaser,  desiring  to  found 
securely,  or  build  up,  a  territorial  family,  saw  an  advantage 
in  making  it  impossible  for  his  descendants  to  lose  or  alienate 
the  land. 

To  take  a  single  though  a  common  example  of  which  there 
might  be  many  variations,  A,  the  seller,  grants  land  to  B 
and  the  heirs  male  of  his  body  lawfully  begotten.     Evidently, 
"Stubbs,  8.  C,  402^63;  A.  and  S.,  75-76. 


REVERSION  OF  LAND  165 

if  this  grant  is  legal,  no  other  heirs  than  those  specified  can 
inherit  and  the  chance  of  escheat  is  increased.  For  an 
escheat  of  this  kind,  under  a  conditional  grant,  the  term 
reversion  came  to  be  used ;  the  land  was  said  to  revert,  to 
return,  to  the  grantor.  But  evidently  also,  the  donee  had 
no  power  to  alienate  away  from  his  heirs,  nor  had  any  sub- 
sequent holder  in  the  line,  since  not  general  heirs  or  assigns 
were  named,  but  certain  specified  heirs  were  parties  with  the 
donee  in  the  grant.  Each  holder  in  succession  had  only  a 
life  interest  in  the  land.  Such  a  grant  did  not  convey  the 
whole  fee  but  a  fee  off  which  something  had  been  cut  (taille). 
The  purchaser  therefore  did  not  possess  a  fee  simple,  but  a 
fee  tail,  and  he  is  said  to  hold  en  tail  —  the  land  is  entailed. 
The  increased  chance  of  reversion  which  has  been  created  by 
the  conditional  grant  is  a  property  right  remaining  to  the 
grantor  and  this  he  may  sell  to  a  third  party  if  he  wishes. 
That  is  he  may  sell  his  right  of  reversion.  Or  he  may  divide 
it  and  convey  away  a  part  of  it  in  the  original  grant  or  in 
a  subsequent  one,  if  he  wishes.  He  may  grant  the  land  to 
A  and  the  heirs  male  of  his  body  lawfully  begotten,  with  a 
remainder  to  C  his  brother,  or  his  daughter,  with  the  same 
limitation  as  to  heirs ;  that  is,  in  this  case  the  land  does  not 
revert,  or  return,  on  the  extinction  of  the  first  line  specified, 
B's,  but  stays  out  or  remains  to  the  second  line, 
C's.  A  right  of  remainder  has  been  created  and  a  line  of 
remainder  men. 

All  this  was  a  simple  extension  of  feudal  principles  and 
required  no  legislation  to  make  it  legal.  But  this  was  a 
decided  check  on  free  alienation  and  the  interests  of  the 
later  heir,  who  might  wish  to  sell,  would  not  always  be  the 
same  as  those  of  the  original  donee.  As  in  other  cases  law- 
yers and  courts  were  on  the  side  of  the  free  disposition  of 
property  and  by  conventional  interpretation  a  way  was 
found  to  break  the  entail.  The  grant  was  interpreted  as  if  it 
were  to  B  and  his  heirs  if  he  have  an  heir  male  of  his  body, 
and,  on  the  birth  of  an  heir  male,  B  was  declared  competent 


166      GROWTH  OF  CONSTITUTION  AND  LAW 

to  convey  the  fee  simple  to  another  though  he  still  did  not 
possess  it  himself.  It  was  this  ruling  of  the  courts  against 
which  the  statute  De  donis  was  directed.  It  made  this  inter- 
pretation illegal  and  declared  that  conditional  grants  must 
be  interpreted  strictly  according  to  the  terms  of  the  grant. 
It  thus  restored  the  logical  feudal  development  and  per- 
petuated the  system  of  entails,  but  this  of  course  only  made 
it  necessary  for  the  law}?ers  to  devise  some  other  method  of 
breaking  the  entail. 

It  is  not  necessary  for  the  purposes  of  this  book  to  follow 
in  detail  the  historical  development  by  which  the  devices  for 
defeating  the  purpose  of  these  statutes  against  free  aliena- 
tion, especially  of  De  donis,  were  put  into  final  form,  not- 
withstanding many  opposing  acts  of  parliament  by  the  way. 
It  is  important  that  the  two  chief  results  be  briefly  stated. 
Early  provisions  against  grants  in  mortmain  had  been  met 
by  a  collusive  lawsuit  called  a  recovery.  A  wishes  to  convey 
a  piece  of  land  to  the  monastery  of  X  but  cannot  obtain 
permission  to  do  so.  By  common  understanding  the  monas- 
tery brings  suit  against  A  for  the  land,  alleging  a  title  to  it 
superior  to  his.  A  allows  the  suit  to  go  by  default,  and 
the  land  is  transferred  to  the  monastery  by  judgment  of  the 
court.  This  forms  the  basis  of  the  action  later  called  a 
common  recovery,  which  was  put  into  final  form  by  the  end 
of  the  fifteenth  century  and  was  used  generally  to  break,  or 
"  bar "  entails.  The  common  recovery  was  the  recovery 
elaborated,  chiefly  by  an  application  of  the  doctrine  of  war- 
ranty, a  doctrine  which  goes  back  in  some  of  its  forms  into 
Saxon  times  and  which  was  used  in  this  case  to  make  the 
title  of  the  new  owner  more  secure.  B  wishing  to  purchase 
from  A  an  entailed  estate  brings  suit  as  above,  but  A  instead 
of  defaulting  himself  "  vouches  to  warranty  "  a  third  person 
C,  from  whom  he  alleges  he  obtained  the  land  and  who  is 
under  obligation  to  warrant  his  title.  C  appears  in  court 
and  accepts  the  obligation,  thus  taking  the  place  of  A  in  the 
case,  but  then  disappears  leaving  the  case  to  go  by  default 


BARRING  ENTAIL  167 

and  the  land  to  be  transferred  to  B  by  a  judgment  of  the 
court.  By  this  process  the  claims  of  the  heirs  of  A  were 
effectually  cut  off  since  they  would  be  told  that  C  was  the 
one  against  whom  they  must  proceed  and  not  B  who  really 
had  the  land,  and  for  C's  duties  a  man  without  property  was 
carefully  selected  usually  a  subordinate  of  the  court.  In 
time  all  pretence  of  an  actual  trial  was  dropped,  and  all  that 
was  necessary  was  to  have  the  records  of  the  court  made  out 
as  if  the  trial  had  taken  place  and  to  pay  the  required  fees. 
The  common  recovery  continued  in  use  until  a  simpler  method 
of  barring  entails  was  introduced  in  the  nineteeth  century. 

The  other  method  of  defeating  the  statutes  against  free 
alienation  of  land,  and  at  the  same  time  of  accomplishing  a 
variety  of  other  purposes,  was  also  a  development  of  an 
earlier  practice,  the  practice  of  nominally  conveying  prop- 
erty to  one  person  really  for  the  use  of  another.  In  law 
the  ownership  was  vested  in  A ;  in  practice  the  use  and  enjoy- 
ment belonged  to  B.  This  method,  as  developed  after  the 
legislation  of  Edward  I,  gave  rise  to  the  doctrine  of  uses, 
and  in  more  modern  times,  in  application  to  a  wide  variety  of 
purposes  to  the  law  of  trusts.  Naturally,  as  in  the  case  of 
recoveries,  the  history  has  been  one  of  elaboration  and  the 
earlier  stages  are  the  simpler,  but  the  development  has  been 
so  logical  that  the  simpler  serves  to.  explain  the  more  elab- 
orate. 

If  A  wishes  to  give  an  estate  -of  land  to  a  church  or  monas- 
tery, a  thing  he  cannot  do  directly  after  the  statute  of  Mort- 
main, he  conveys  it  instead  to  B,  stating  in  the  deed  the  fact 
that  it  is  for  the  use  of  the  church.  In  law  the  grant  is  not 
to  the  church  but  to  the  man  B.  Her  is  trusted  by  the  donor 
to  allow  the  church  to  have  the  management  and  proceeds  of 
the  land.  The  trust  is  considerable,  because,  if  he  does  not 
choose  to  do  so,  there  is  no  remedy  in  law.  The  land  is  his 
on  the  face  of  the  documentary  evidence,  and  the  common  law 
will  not  go  behind  that.  The  statute  of  Mortmain,  however, 
is  avoided,  because  no  land  has  been  in  form  given  to  the 


168      GROWTH  OF  CONSTITUTION  AND  LAW 

church.  The  practice  in  this  simpler  form  was  soon  for- 
bidden by  another  statute,  but  its  application  to  a  great  va- 
riety of  needs,  and  the  ease  with  which  the  form  was  varied, 
led  to  its  employment  for  a  wide  range  of  purposes.  A  man 
could  escape  his  obligatory  feudal  payments,  break  an  entail 
under  the  statute  De  donis,  escape  some  of  the  penalties  of 
treason,  or,  since  he  could  not  make  a  will  bequeathing  land 
feudally  held,  convey  his  land  to  the  use  of  'his  last  will  and 
testament.  Several  trustees  came  to  be  named  instead  of  one, 
with  power  to  fill  vacancies,  in  order  to  get  a  nominal  owner 
who  would  not  die.  Statutes  were  made  in  vain  from  time 
to  time  against  these  various  forms ;  some  way  was  found  to 
avoid  them  all.  Before  long  equity  took  notice  of  the  prac- 
tice and  began,  especially  in  the  fifteenth  century,  to  enforce 
the  trust,  as  a  matter  of  justice  and  conscience.  Thus  from 
the  original  simple  beginning,  there  followed  in  time  a  vast 
development  which  has  come  dowTn  to  us,  and  corresponding 
to  this,  there  was  an  equally  great  enlargement  of  the  body 
of  equity  jurisprudence. 

Bibliographical  Note. —  G.  B.  Adams,  The  Origin  of  the 
English  Constitution,  1920.  J.  F.  Baldwin,  The  King's  Council, 
1913.  C.  Beraont,  Simon  de  Montfort,  1884.  F.  J.  C.  Hearn- 
sliaw,  Leet  Jurisdiction  in  England,  1908.  C.  L.  Kingsford, 
The  Song  of  Lewes,  1890.  K.  Norgate,  The  Minority  of  Henry 
III,  1912.  R.  Pauli,  Simon  de  Montfort,  Translation  of  U.  M. 
Goodwin,  1876.  G.  W.  Prothero,  Simon  de  Montfort,  1877.  T. 
F.  Tout,  The  Administrative  History  of  Mediaeval  England,  2 
Vols.,  1920;  Edward  I,  1893. 


CHAPTER  VII 
THE  ORIGIN  OF  PARLIAMENT 

Vastly  important  as  was  the  legal  development  of  the 
thirteenth  century  for  the  whole  Anglo-Saxon  world,  there 
was  taking  place  at  the  same  time  an  institutional  change 
which  was  of  greatly  wider  influence,  for  its  results  were  in 
the  nineteenth  century  to  be  extended  to  the  advantage  of 
all  mankind.  This  change  was  the  transformation  of  the 
great  council  into  parliament  which  was  not  quite  but  nearly 
completed  before  the  century  closed. 

It  is  accurate  enough  to  call  the  process  one  of  change, 
but  in  truth  the  old  great  council  went  on  in  the  new  parlia- 
ment with  only  slight  changes  anoT  is  present  in  it  today  in 
the  house  of  lords  almost  exactly  as  it  existed  under  Henry 
II.  The  process  by  which  parliament  was  formed  was  the 
introduction  into  meetings  of  the  great  council  of  certain  ele- 
ments of  the  community  which,  in  the  days  when  unmodified 
feudal  ideas  were  ruling,  had  no  standing  in  it.  In  tracing 
the  origin  of  parliament,  we  have  to  trace  the  steps  by  which 
these  elements  were  introduced  and  the  probable  reasons  for 
the  innovation.  / 

A  great  economrc  and  social  change  was  taking  place  in 
the  thirteenth  century,  one  of  whose  results  began  to  make 
itself  felt  soon  after  the  middle  of  the  century.  This  change 
was  the  rise  to  an  interest  in  public  affairs  of  two  new  classes 
alongside  the  older  feudal  ruling  classes  or,  if  it  is  too  much 
to  say  to  an  interest  in  what  we  should  mean  today  by  the 
political  control  of  the  state,  at  least  to  a  position  of  interest 
in  the  influence  which  public  policy  might  have  on  their  own 
affairs.     They  speedily  became  also  of  importance  in  their 

169 


170  THE  ORIGIN  OF  PARLIAMENT 

support  and  resources  to  the  ruling  classes,  or  to  the  govern- 
ment of  the  day.     These  two  classes  were  the  knights  of  the 

country  districts  and  the  burgesses  of  the  towns.     ■ 

The  knights  were  of  course  an  older  class,  one  of  the  feudal 
classes,  but  the  change  which  was  taking  place  in  the  thir- 
teenth century  made  out  of  them  a  new  class,  in  some  respects 
peculiar  to  England,  whose  peculiarity  and  significance  will 
be  discussed  later.  The  smallest  of  the  minor  barons  who 
was  the  tenant  in  chief  of  the  king  for  a  single  knight's  fee  or 
less  could  never  have  had  any  great  interest  in  political 
feudalism.  He  could  have  only  a  domanial  court  from  which 
he  could  hope  for  no  political  independence.  His  military 
service  could  never  have  been  a  source  of  much  pride  or 
consideration,  and  his  court  service  to  the  king,  so  far  as  we 
can  tell,  was  generally  left  unperformed,  performed  only  on 
special  occasions.  The  decline  in  political  feudalism,  which 
in  the  thirteenth  century  affected  all  feudal  classes,  affected 
the  knights  most  rapidly  and  thoroughly.  The  demands 
connected  with  the  Provisions  of  Oxford  show  that  fact 
clearly.  Meantime  their  class  was  being  enlarged.  The  dis- 
tinction in  anything  but  form  between  these  minor  tenants 
in  chief  and  the  rear  tenants  of  single  knight's  fees,  who  held 
of  mesne  lords,  must  always  have  been  somewhat  artificial, 
and  rather  early  in  the  long  reign  of  Edward  I  it  was  even  in 
form  swept  away.  All  holders  of  twenty  pounds'  worth  of 
land  of  whomsoever  holding  were  brought  under  the  same 
military  regulations  and  the  same  distraint  of  knighthood. 
With  the  rise  of  prices  during  the  century  many  holders  of 
fractional  fees  also  came  to  have  the  required  income  and 
became  in  law  knights  as  they  had  undoubtedly  been  earlier 
classed  by  custom.  A  class  was  forming,  the  beginning  of 
the  country  gentry  of  England,  which  finds  a  chief  political 
interest  in  the  management  of  county  business,  long  in  their 
hands  and  greatly  increased  in  importace  by  the  itinerant 
justice  system,  and  which  finds  by  degrees  its  personal  and 
sometimes  its  public  interests  not  quite  the  same  as  those  of 


KNIGHTS  AND  BURGESSES  171 

the  major  barons.  It  is  a  substantial  class,  of  solid  position, 
of  good  income  and  local  consideration,  and  ready,  as  class 
consciousness  develops,  to  speak  for  and  maintain  its  own 
views  and  interests. 

The  burgess  class  was  newer  and  less  strongly  rooted,  cer-  * 
tainly  in  the  past  and  for  the  present  in  the  country.  Its 
strength  lay  in  its  increasing  wealth  through  rapidly  develop- 
ing commerce  and  in  its  possession  of  ready  capital.  Eng- 
land was  a  producer  chiefly  of  raw  materials,  and  commerce 
which  centered  in  the  towns  was  of  more  importance  to  the 
country  than  the  beginnings  of  industry,  which  were  as  yet  I 
limited.  Her  freedom  from  foreign  invasion  and  from  de-  ^- 
structive  civil  wars  had  enabled  her  to  develop  at  an  early 
date  her  future  chief  staple,  wool,  and  even  in  the  twelfth 
century  the  possibilities  of  government  income  to  be  found  in 
the  wool  trade  had  attracted  attention.  By  the  reign  of 
Richard  I  the  number  of  chartered  towns  had  noticeably 
begun  to  increase  and  under  John  the  increase  was  still  more 
rapid.  The  introduction  of  feudalism  at  the  Norman  Con- 
quest had  not  disturbed  the  condition  of  local  independence 
which  the  Saxon  territorial  organization  had  favored,  but  it 
had  brought  the  towns  into  the  possession  of  the  king  or  of 
some  other  lord,  bishops  and  churches  held  many.  As  be- 
longing to  a  lord,  the  town  formed  a  part  -of  his  domain  lands 
and  was  therefore  subject  to  the  disabilities  and  exactions  of 
the  serf. 

From  the  limitation  of  this  condition,  the  practice  of  con- 
veving  all  sorts  of  rights  by  charter,  greatly  developed  in 
feudal  times,  might  relieve  the  borough  more  or  less  com- 
pletely. Rights  conveyed  by  charter  to  boroughs  in  Eng- 
land, some  to  one,  others  to  another,  all  only  to  the  most 
favored,  may  be  put  into  four  classes :  *  freedom  from  the 
lord's  domanial  rights  over  serfs,  like  his  right  to  a  fine  for 
marriage ;  economic,  freedom  from  'tolls,  the  right  to  a  fair, 

iStubbs,  S.  C,  103-107;  128-130;  195-199;  304-313;  Cheyney,  Read- 
ings,  208-211. 


172  THE  ORIGIN  OF  PARLIAMENT 

etc. ;  legal,  the  right  to  hold  a  court,  with  freedom  from 
other  courts,  and  from  jury  trials;  and  governmental,  the 
right  to  exclude  royal  officials,  to  collect  themselves  the  royal 
dues,  the  firma  burgi,  the  right  to  elect  their  own  officers  and 
to  provide  for  their  own  local  government.  Most  of  the 
fully  chartered  boroughs  occupied  the  position  of  separate 
hundreds  in  the  county,  but  a  number  of  them  attained  before 
the  end  of  the  middle  ages  to  the  position  of  counties  in  that 
they  possessed  the  privilege  of  electing  their  own  distinct 
sheriffs.  The  'boroughs  of  more  full  right  enjoyed  the 
privilege  of  appearing  as  independent  units  in  the  county 
court  which  was  summoned  to  meet  the  itinerant  justices. 

Notwithstanding  the  fact  that  occasionally  some  person 
who  stood  in  no  feudal  relationship  to  the  king  was  asked  to 
be  present  at  a  meeting  of  the  great  council,  it  would  have 
seemed  impossible  to  twelfth  century  England  that  men 
should  be  admitted  in  large  numbers  to  the  assembly  on  no 
ground  of  tenure  and  as  delegates  of  non-feudal  classes  or 
communities.  It  is  no  slight  sign  of  the  decline  of  feudal 
ideas  that  it  did  seem  possible  to  the  thirteenth.  In  the 
formation  of  parliament  then  there  were  brought  into  the 
feudal  great  council  new  elements,  not  on  a  feudal  basis  and 
representing  classes  in  the  community  which  were  essentially 
not  feudal.  The  result  was  a  structural  change,  very  similar 
in  character  to  that  by  which  the  earlier  Teutonic  national 
assembly  was  made  over  into  the  feudal  great  council.  It 
was  like  that  the  introduction  of  a  new  principle  of  composi- 
tion, the  principle  of  representation.  But  the  extent  of  the 
change  should  not  be  exaggerated.  It  should  be  remem- 
bered that  there  is  no  evidence  to  show  that  these  new  ele- 
ments in  parliament  were  allowed  during  that  century  any 
share  in  .its  determining  and  deciding  functions  over  any 
class  or  interests  except  their  own.  Also  the  old  great  coun- 
cil remained  unchanged.  For  a  long  time  it  still  acted  now 
and  then  alone  as  parliament,  and  for  a  longer  time  yet 
traces   of   its   independent   powers    and   functions   survived. 


THE  REPRESENTATIVE  SYSTEM  173 

The  new  elements  were  grouped  around  it  for  the  time  being, 
not  organically  absorbed  into  it  changing  its  nature. 

Scholars  have  not  yet  come  to  an  agreement  among  them- 
selves as  to  the  source  from  which  the  idea  embodied  in  the 
representative  system,  as  we  understand  it,  was  derived.     It 
seems  altogether  likely  that  the  final  decision  will  be  that  the 
idea  was  derived  from  one  source  and  the  institutional  forms, 
through  which  it  was  given  expression  in  the  constitution  of 
the  state,  from  another.     At  any  rate  it  seems  certain  that 
the  representative  idea  is  first  to  be  found  expressed,  in  lan- 
guage which  conveys  something  like  the  modern  meaning,  in 
documents  relating  to  the  synods  and  councils  of  the  church. 
On  the  other  hand  it  is  equally  clear  that  the  preliminary, 
formal  steps  by  which  non-feudal  representatives  were  intro- 
duced into  the  great  council  were  taken  entirely  free  from 
influence  of  the  church.      What  we  have,  to  see  in  the  events 
as  they  took  place  is,  first,  that  delegates  of  local  communi- 
ties were  summoned  to  the  council  before  there  existed  any 
idea  of  representation  in  the  modern  sense,  for  that  idea  does 
not  mean  merely  that  the  delegate  reports  to  the  assembly  a 
decision  which  the  local  community  has  already  made,  but 
that  he  comes  with  full  powers  to  take  part,  as  speaking  for 
it  and  on  equal  terms  with  the  other  members  of  the  assembly, 
in  discussing  and  settling  questions  yet  undecided,  questions 
indeed  which  may  not  have  arisen  when  he  was  chosen.     And 
we  have  to  see  in  the  second  place  how,  as  the  practice  of  sum- 
moning such  delegates  increased  in  frequency,  the  representa- 
tive idea  entered,  not  with  its  full  later  clearness  in  the  thir- 
teenth century,  but  clearly  enough  to  be  consciously  applied. 
From  that  beginning  these  two  have  grown  together  through 
uninterrupted  experience  into  our  present  day  conception  of 
representative  government. 

In  considering  the  actual  series  of  events  which  trans- 
formed the  great  council  into  parliament,  we  must  not  over- 
look the  significant  fact  that  no  one  at  the  time  perceived 
that  any  change  of  importance  was  taking  place.     It  at- 


174  THE  ORIGIN  OF  PARLIAMENT 

tracted  no  special  attention  to  itself.  Neither  in  the  records 
nor  in  the  chroniclers  is  there  any  evidence  that  anything 
thought  to  be  unusual,  or  to  make  a  sharp  break  with  cus- 
tomary ways  of  doing  things,  was  seen  to  be  going  on. 
Whatever  explanation  is  offered  of  the  origin  of  parliament, 
it  must  be  one  that  shows  the  first  steps  to  have  been  taken 
in  line  with  things  already  familiar,  with  no  wide  divergence 
at  any  rate  from  processes  in  common  use  or  from  current 
ideas.  The  function  of  the  new  elements  in  the  curia  regis 
during  the  first  half  century  or  more  after  their  introduc- 
tion must  have  seemed  so  nearly  identical  with  some  similar 
function  already  performed  by  members  of  the  same  class,  in 
circumstances  of  the  same  kind,  as  not  to  appear  to  con- 
temporaries a  departure  from  things  habitual. 

It  is  generally  considered  that  the  first  step  in  the  con- 
tinuous evolution  of  parliament  was  taken  inJL2_54?.  Early 
in  that  year  the  king  in  Gascony,  finding  an  extraordinary 
need  of  money  for  his  expenses,  determined  to  attempt  rais- 
ing an  aid  in  England  from  those  who  were  not  coming  to 
his  assistance  in  person.  His  experiences  in  such  attempts 
in  recent  years  had  not  been  happy.  He  had  quite  as  much 
reason  to  expect  refusal  as  consent.  By  some  one  in  the 
king's  counsels  the  suggestion  seems  to  have  been  made  that, 
if  the  consent  of  the  counties  could  be  obtained  in  advance, 
and  that  consent  made  known  authoritatively  to  the  council, 
the  chance  of  success  would  be  greatly  increased.  It  was 
probably  also  thought  that,  if  the  king's  necessities  were 
fully  explained  and  put  in  the  right  light  by  the  sheriffs  to 
the  county  courts,  they  would  readily  agree  to  such  a  tax. 
This  was  the  plan  at  any  rate  which  was  adopted.  On  Feb- 
ruary 11a  writ  was  issued  by  the  queen  and  the  earl  of  Corn- 
wall, who  were  conducting  the  government  in  the  absence  of 
the  king,  directing  the  sheriffs  to  act  upon  such  a  plan.2 
The  writ  indicates  clearly  that  the  decision  is  to  be  made  in 
the  county  court,  and  that  the  function  of  the  knights  is 

aStubbs,  S.   C,  3G5-366;   A.   and   S.,  55-56. 


COUNTY  CONSENT  INVOKED  175 

no  more  than  to  carry  it  to  the  council  and  to  certify  it 
officially.  That  this  interpretation  is  correct  is  made  more 
evident  by  the  language  of  the  writ  issued  upon  the  same  day 
to  the  archbishop  of  Canterbury  directing  him  to  convoke 
the  inferior  clergy  subject  to  him,  to  induce  them  in  the 
same  way  to  grant  a  liberal  aid,  and  to  see  that  they  certify 
the  council  at  the  same  date  by  discreet  men  the  amount  and 
manner  of  aid.  Clearly  the  function  of  the  delegates  was 
to  report  a  decision  already  reached  by  the  local  body. 
The  modern  idea  of  representation  is  not  to  be  found  here, 
except  so  far  as  it  may  be  involved  in  mere  delegation,  the 
knights  speaking  for  the  county  in  making  known  officially 
its  decision. 

There  can  be  no  doubt  but  that  the  practice  in  use  at  the 
time  which  seems  to  have  been  most  closely  followed  in  this 
summoning  of  the  knights  from  the  counties  in  1254,  and  in 
what  they  were  asked  to  do,  was  that  long  employed  in  send- 
ing the  record  of  a  case  tried  in  the  county  court  to  the  cen- 
tral king's  court.  The  practice  was  not  an  uncommon  one 
and  evidence  of  it  occurs  frequently  in  the  court  records  with 
all  the  characteristics  of  the  incident  of  1254.  Here  was 
certainly  a  direct  line  of  connection  between  the  county 
court  and  the  king's  council,  already  established  and  in  fre- 
quent use.  The  action,  of  the  knights  in  1254  was  the 
same.  They  brought  to  the  king's  council,  in  order  officially 
to  attest  it,  a  record  which  had  been  made  in  the  county 
court.  That  the  function  which  they  performed  had  in- 
directly much  in  common  with  that  of  the  jury  is  also  evi- 
dent :  they  made  known  to  the  council  the  local  feeling  and 
opinion  proposed.  The  practical  result  is  not  different. 
But  if  the  two  processes  are  compared  step  by  step,  it  will 
be  clear  beyond  question  that  the  action  of  the  two  knights 
in  1254  corresponds  far  more  closely  with  that  of  the  knights 
carrying  a  record  than  with  that  of  the  jury. 

Already  at  the  date  of  this  action  in  1254  knights  had 
been  extensively  employed  in  public  business  for  nearly  a 


176  THE  ORIGIN  OF  PARLIAMENT 


hundred  years.  We  have  learned  earlier  of  their  employ- 
ment in  the  business  of  the  county,  under  the  national 
judicial  organization  established  by  Henry  II,  as  those  who 
selected  the  accusing  juries  as  in  the  commission  of  1194, 
and  composed  them  also,  if  there  were  knights  enough.  The 
assize  juries  were  composed  in  the  same  way  and  the  jury 
of  the  grand  assize  selected  in  the  same  way.  The  method 
by  which  the  four  knights  who  began  these  processes  in  the 
county  court  were  themselves  chosen  was  probably,  though 
not  certainly,  one  of  election  by  the  assembly  of  the  court. 
It  comes  to  be  election  at  any  rate  before  1254.  In  other 
county  court  business  they  were  also  employed:  in  making  a 
record  for  the  county  in  another  court,  in  testing  an  essoin, 
in  making  a  view  of  lands  to  determine  boundaries,  etc. 
We  have  seen  them  also  acting  for  the  local  communities  in 
taxation,  a  national  business,  and  in  some  cases,  not  yet 
noted,  they  had  brought  reports  of  an  administrative  charac- 
ter for  their  counties  to  the  council.  To  enumerate  the  cases 
in  the  reign  of  Henry  III:  In  1220  two  knights  were  chosen 
in  the  county  court  to  assess  and  collect  a  carucage  for 
the  county;  in  1225  four  knights  were  chosen  from  each 
hundred  to  assess  and  collect  the  fifteenth ;  in  1226  four 
knights  were  summoned  from  each  of  eight  counties  to  re- 
port to  the  council  on  the  conduct  of  the  sheriffs  in  their 
counties,  and  in  1227  we  have  the  same  summons  for  the  same 
purpose  from  twenty-seven  counties ;  in  1232  knights  were 
to  supervise  the  assessment  of  a  fortieth  and  in  1237  of  a 
thirtieth,  and  in  1235  and  1242  to  assist  in  the  collection  of 
scutages;  again  in  1258,  four  years  after  the  incident  of 
1254,  four  knights  were  elected  in  each  county  to  report  on 
the  sheriffs.  The  summoning  of  knights  to  the  council  in 
1254  to  report  for  the  county  a  decision  which  had  been 
reached  in  the  county  court  about  a  proposed  tax  must  have 
seemed  to  every  one  a  most  usual  and  normal  proceeding. 

But  in  1254  the  knights  reported  to  a  small  not  to  a  great 
council  and  their  function  was  one  distinctly  limited.     The 


REPRESENTATIVE  KNIGHTS  177 

first  step  may  have  been  taken,  but  it  was  not  a  very  long 
one  and  much  yet  remained  to  do.  It  may  however  have 
been  a  longer  step  in  the  thirteenth  century  than  it  seems 
to  be  to  us,  for  the  rest  followed  somewhat  rapidly.  In 
September,  1261,  Henry  III  issued  writs  to  the  sheriffs  in 
which  he  said  that  the  insurgent  barons  had  called  three 
knights  from  each  county  to  meet  them  at  St.  Albans  on  the 
twenty-first  to  treat  with  them  "  concerning  common  af- 
fairs of  our  kingdom."  He  directed  the  sheriffs  to  cause 
these  knights  to  come  to  him  at  Windsor  to  hold  a  colloquy 
with  him  on  the  same  da}'  where  the  barons  were  to  meet  him 
to  treat  of  peace.3  Apart  from  the  summoning  of  knights 
from  the  counties  to  meet  with  some  central  body,  the  impor- 
tant thing  in  this  writ  is  that,  both  by  barons  and  king,  they 
seem  to  have  been  summoned  to  discuss  public  affairs  not 
previously  referred  to  the  counties  for  decision.  For  this 
reason  in  spite  of  the  fact  that  we  do  not  know  how  these 
knights  were  to  be  selected  nor  with  what  body  they  were 
to  meet,  we  must  reckon  this  case  a  step  in  the  formation  of 
parliament. 

The  next  advance  is  clear  and  covers  all  the  points  that 
could  be  expected  at  that  date.  In  June,  1264,  Simon  de  ^/ 
.Mont  fort,  as  ruler  of  England  after  the  victory  of  Lewes 
but  in  the  name  of  the  king,  directed  that  there  should  be 
sent  to  London  to  the  coming  parliament  four  of  the  most 
legal  and  discreet  knights  from  each  county,  elected  for  the 
purpose  with  the  assent  of  the  county  and  for  the  whole 
county,  to  treat  with  the  prelates  and  magnates  concerning 
the  business  of  king  and  kingdom.4  In  this  incident  we  have 
brought  together  for  the  first  time  everything  necessary  to 
make  the  beginning  of  the  transformation.  This  is  not  to 
say  that  the  representative  idea  was  yet  present  or  that  the 
representative  system  was  yet  established.  This  advance 
which  we  have  traced  is  the  institutional  preparation  merely, 

3Stubbs,    S.    C,    394-395. 
♦  Stubbs,  S.   C,  399-400. 


178  THE  ORIGIN  OF  PARLIAMENT 

but  this  line  of  preparation  has  now  gone  so  far,  though  it 
is  not  yet  complete,  that  it  can  easily  be  made  to  give  full 
expression  to  the  representative  idea  when  the  time  for  that 
has  come.  We  must  not  forget  also  that  the  writ  of  June  4, 
though  in  form  a  king's  writ,  was  really  issued  by  the  insur- 
gent barons  lately  victorious  at  Lewes.  An  innovation  of 
this  kind  made  by  a  revolutionary  party,  in  the  full  tide  of 
revolutionary  influences,  and  needing  to  maintain  its  internal 
union  as  closely  as  possible,  is  not  the  same  thing  as  if  made 
by  the  historical  and  established  government.  The  final 
adoption  of  the  change  may  even  be  delayed  by  such  a  fact. 

Notwithstanding  the  advance  of  1264,  there  still  remained 
one  step  to  be  taken  in  order  to  complete  the  line  of  institu- 
tional preparation.  This  also  was  taken  by  Simon  de 
Montfort  and  in  the  same  year,  in  writs  of  December  1264, 
calling  the  famous  parliament  of  January,  1265. 5  Since  the 
battle  of  Lewes  Earl  Simon's  party  among  the  barons  had 
grown  decidedly  weaker  and  to  this  parliament  were  sum- 
moned only  five  earls  and  eighteen  barons  and,  probably  to 
get  the  advantage  of  his  strength  with  the  middle  classes,  he 
caused  two  knights  to  be  summoned  from  each  shire,  and 
then  in  addition,  the  special  innovation  of  this  parliament, 
two  representatives  from  each  of  the  cities  and  boroughs,  the 
writs  being  sent  in  this  last  case  not  to  the  sheriffs  as  in  the 
later  practice  but  directly  to  the  towns. 

These  writs  add  nothing  to  the  writ  of  the  preceding  June 
except  the  'summons  to  citizens  and  burgesses.  As  the  evi- 
dence has  come  down  to  us,  we  must  say  that  the  summons 
of  December  is  less  clear  and  explicit  than  that  of  June.  It 
is  probable,  however,  that  it  -would  be  understood  to  mean  as 
much  and  be  acted  upon  in  the  same  way.  If  we  make  this 
assumption,  we  may  suppose  at  this  time  as  well  as  in  June, 
election,  representation,  and  participation  in  the  business  to 
In  done.  It  is  I  think  fair  to  say  that  the  writs  of  June  are 
as  much  Simon  de  Montfort's  as  those  of  December,  to  con- 

sStubbs,  S.   C,  403-404.. 


PARLIAMENT  OF  DE  MONTFORT  179 

sidcr  the  two  practically  one  case  and  therefore  to  attribute 
to  him  the  entire  innovation,  of  which  in  complete  form  we 
have  here  the  first  evidence.  This  includes  not  merely  the 
admission  of  burgesses  but  of  knights  of  the  shires  to  full  v 
standing  in  the  great  council,  to  full  standing  so  far  as  the 
form  of  words  used  in  the  summons  is  concerned,  whatever 
position  they  may  have  occupied  in  actual  discussions.  Un- 
doubtedly, as  Bishop  Stubbs  says,  this  meeting  "  was  not 
primarily  and  essentially  a  constitutional  assembly."  It 
was  a  revolutionary  assembly  of  the  party  of  the  barons. 
But  in  the  forms  observed  it  was  constitutional,  evident  pains 
were  taken  with  that  side  of  things,  and  it  was  beyond  ques- 
tion the  theory  of  Simon  de  Montfort  and  his  supporters  that 
it  was  legally  a  great  council. 

Though  this  parliament  of  Simon  de  Montfort  contains  all 
the  constituent  elements  of  the  historical  English  parliament, 
lords,  county  members,  and  borough  members,  it  is  easily 
possible  to  estimate  too  highly  its  influence  on  the  future. 
It  falls  still  within  the  age  of  preparation.  It  is  the  be-  / 
ginning  of  an  epoch  of  change,  not  its  full  fruition.  To 
call  it  the  origin  of  the  House  of  Commons  in  any  except 
the  narrowest  sense,  the  sense  of  the  occurrence  together 
for  the  first  time  of  these  new  elements,  would  be  an  error. 
The  act  determined  nothing,  rendered  nothing  necessary. 
It  merely  foreshadowed  what  was  to  be,  and  its  greatest 
importance  to  us  is  as*  a  sign  that  the  vast  economic  and 
social  changes,  which  in  the  end  determine  the  legal  and 
constitutional,  and  which  we  can  trace  at  work  in  England 
from  the  dawn  of  the  century  if  not  before,  were  beginning 
to  affect  the  forms*  of  government.  These  ultimate  forces 
were  certain  to  accomplish  this  result  before  very  long.  It 
was  inevitable  at  a  time  when  stricter  feudal  ideas  were 
rapidly  disappearing  and  in  a  regime  which  was  one  of 
classes  only,  that  a  class  so  distinct  as  the  burgesses,  hav- 
ing so  many  interests  peculiar  to  themselves  in  the  conduct 
of    government,    and   having   also    such    rapidly    increasing 


180  THE  ORIGIN  OF  PARLIAMENT 

power  and  such  means  of  making  their  power  promptly  felt, 
should  be  drawn  into  the  central  assembly,  not  perhaps  so 
much  from  any  desire  or  demand  of  their  own  as  that  their 
support  and  concurrence  had  become  important.  The  same 
changes  with  the  same  constitutional  effects  were  taking 
place  in  many  European  states,  and  in  the  history  of  the 
movement  as  a  whole  the  place  of  England  is  late  rather 
than  early. 

It  is  of  course  true  that  if  the  burgesses  were  certain  to 
be  admitted  into  the  older  institution,  there  was  nothing  in 
that  fact  nor  in  any  other  circumstance  of  the  time  that 
determined  the  form  and  character  which  the  new  institution 
was  to  assume,  and  this  was  a  question  of  vital  importance 
for  the  future.  Upon  its  answer  depended  the  existence  of 
the  constitution  as  much  as  upon  the  survival  and  broadened 
significance  of  the  ideas  of  the  Great  Charter,  for  in  the 
course  of  a  century  parliament  was  to  assume  the  task  of 
forming  the  limited  monarchy  in  place  of  the  inefficient 
baronial  opposition.  Before  the  middle  of  the  fourteenth 
century  indeed  the  barons  had  shown  themselves  incapable 
of  the  constructive  work  demanded  of  them.  The  Provisions 
J  of  Oxford  stand  as  their  high  water  mark  above  which  they 
were  never  able  to  rise.  The  future  of  the  constitution,  the 
possibility  of  the  limited  monarchy,  depended  on  the  char- 
acter of  the  new  institution  which  was  coming  into  existence 
during  this  formative  age. 

To  understand  how  easily  a  different  and  far  less  efficient 
form  might  have  been  given  to  this  institution,  or  indeed  how 
little  effort  it  would  have  required  to  have  prevented  alto- 
gether the  formation  of  a  really  effective  parliament,  it  is 
only  necessary  to  study  the  forms  which  the  institution 
assumed  during  the  transitional  period  of  experimenta- 
tion from  1265  to  1295.  In  the  two  later  parliaments  of 
Henry  Ill's  reign  1267  and  1269,  there  is  no  evidence  of 
any  membership  but  that  of  the  great  council.  To  Edward 
I's  first  parliament  in  the  spring  of  1275  four  knights  were 


TRANSITIONAL  PERIOD,  1265-95  181 

summoned  from  each  county  and  six  or  four  burgesses  from 
each  borough  through  the  sheriff,  but  this  form  was  not  fol- 
lowed again  before  1295.°  They  were  summoned  to  treat 
with  the  magnates  upon  the  business  of  the  kingdom.  In 
the  autumn  of  1282  Edward,  after  trying  to  raise  money  for 
his  war  in  Wales  by  negotiation  with  the  separate  counties 
and  boroughs,  called  two  assemblies,  of  the  five  northern 
counties  at  York  and  of  the  others  at  Northampton,  to  which 
were  summoned  four  knights  from  each  county  and  two  rep- 
resentatives from  each  city  and  borough,7  it  being  specified 
that  both  knights  and  town  representatives  should  have  full 
powers.  In  1283  an  assembly  was  summoned  to  meet  in  Sep- 
tember at  Shrewsbury  to  decide  what  should  be  done  with 
David  of  Wales  who  had  been  captured.  Writs  were  sent 
to  the  sheriffs  for  two  knights  from  each  shire  and  directly 
to  twenty-one  towns  for  two  representatives  from  each,  both 
knights  and  burgesses  according  to  the  writs  to  take  part 
in  deciding  the  question  about  David.8  The  knights  appear 
to  have  done  so,  but  the  burgesses  may  have  withdrawn  from 
what  became  a  trial  for  treason,  in  which  they  would  have 
no  share  in  law,  and  by  themselves  at  Acton  Burnell  have 
authorized  the  so-called  statute  De  mercatoribus  which  was 
in  legal  form  an  ordinance  of  king  and  council.  At  the 
end  of  May,  1290,  a  great  council  of  bishops  and  barons,  in 
full  parliament  the  record  says,  granted  the  king  an  aid 
for  the  marriage  of  his  daughter  "  for  themselves  and  the 
community  of  the  whole  kingdom  as  much  as  in  them  is."  9 
Then  two  knights  from  each  shire  were  summoned  to  join 
the  others  in  July  "  with  full  powers  to  council  and  consent." 
But  without  waiting  for  them  to  arrive  the  statute  Quia 
emptores  was  passed,  though  the  interests  of  the  knights 
would   seem   to   be   directly   concerned   in   it.     In    1294   the 

eStubbs,  S.  C,  440-442. 

7Stubbs,  S.   C,  452-459. 

sStubbs,  S.    C,    4G0-461. 

»Stubbs,  S.   C,  470-474. 


182  THE  ORIGIN  OF  PARLIAMENT 

clergy  in  a  separate  assembly  made  a  grant  to  the  king  and 
the  lay  barons  by  themselves  in  another  assembly  to  which 
two  knights  from  the  counties  had  been  summoned  on  Octo- 
ber eighth  "  to  consult  and  consent  "  in  the  language  of  1290, 
and  on  the  next  day  two  more  "  to  hear  and  do  what  we  then 
enjoin  upon  them,"  but  no  burgesses  were  summoned.10  In 
the  same  year  the  merchants  granted  to  the  king  an  increase 
of  the  duties  on  wool. 

What  is  especially  instructive  in  this  list  are  the  occa- 
sions when  we  find  the  two  forms  which  were  later  most  suc- 
cessfully employed  by  the  French  kings  in  weakening  the 
Estates  General  and  reducing  them  to  the  service  of  the 
crown  —  the  division  of  the  national  parliament  into  provin- 
cial assemblies  and  its  division  into  distinct  assemblies  of  the 
different  estates.  These  forms  occur  without  especial  com- 
ment or  protest.  The  danger  which  lay  in  them  was  not 
evident.  Their  competence  within  their  separate  fields  was 
not  less  than  that  of  a  full  parliament  of  the  next  century, 
considering  the  difference  of  date.  Nothing  indicates  that 
there  would  have  been  any  difficulty  in  directing  the  future 
development  of  parliament  along  the  line  of  these  prece- 
dents. Indeed  the  kings  for  some  time  continued  to  nego- 
tiate separately  with  some  of  the  classes  to  avoid  the  diffi- 
culty of  dealing  with  parliament  and  were  induced  to  give 
up  the  practice  only  by  the  skillful  management  of  the  house 
of  commons  in  the  fourteenth  century,  and  irregularities  in 
membership  continued  through  the  reign  of  Edward  I  at 
least.  It  is  not  necessary  to  say  that  if  these  had  been 
controlling  precedents  no  parliament  would  have  been 
formed  in  the  English  sense  and  no  constitution. 

What  saved  parliament  and  the  constitution  in  this  crisis 
was  ignorance,  was  lack  of  experience.  Had  it  been  possible 
for  Edward  I  to  foresee  the  future  in  this  respect,  as  it  was 
for  Charles  V  and  Charles  VII  of  France  some  generations 
later,  and  to  understand  the  danger  to  the  monarchy  which 

loStubbs,   S.    C,   474-477. 


INDICATIONS  OF  PROGRESS  183 

lay  in  the  growth  of  a  strong  parliament,  he  could,  so  far 
as  we  can  now  see,  and  he  probably  would,  have  prevented  it. 
It  was  hardly  possible  to  do  this  after  the  close  of  his  reign ; 
it  was  entirely  impossible  after  the  deposition  of  Edward  II.  \j 

Through  all  the  irregularities  of  the  period  something  in 
the  way  of  progress  is  to  be  discerned.  For  one  thing  the 
association  of  representatives  of  the  local  communities  with 
the  prelates  and  magnates  in  the  great  council  was  growing  ^ 
more  customary.  There  is  no  evidence  as  yet  that  rules  or 
fixed  forms  were  being  evolved,  but  the  practice  was  becom- 
ing more  common.  There  is  also  during  this  time  somewhat 
clearer  expression  of  the  fact  that  the  representatives  were 
called  to  take  part  in  the  public  business  before  the  curia 
along  with  the  older  members.  There  is  nothing  to  war- 
rant us  in  saying  that  they  were  invited  to  anything  like  the 
free  discussion  of  a  later  parliament,  or  that  they  were  to 
be  allowed  an  actual  voice  in  making  the  decision  wished  for. 
Both  these  things  are  highly  improbable,  unless  it  be  in  mat- 
ters which  concerned  themselves  primarily,  but  in  some  way 
their  report  as  to  local  opinion  was  thought  to  be  important 
and  was  regarded  by  those  who  did  make  the  decision  as  one 
of  the  considerations  in  view  of  which  they  acted.  The  re- 
quest in  the  writs  that  representatives  be  clothed  with  "  full 
powers "  probably  means  no  more  than  that  they  should 
have  proper  credentials  to  validate  their  report  and  to  bind 
the  community  to  the  action  taken. 

It  should  be  evident  also  from  the  events  of  this  period 
that  it  was  not  alone  from  a  desire  to  get  advance  local  con- 
sent to  taxation  that  the  new  elements  were  brought  into 
the  great  council.  Undoubtedly  that  was  one,  perhaps  the 
chief,  motive.  The  new  land  owning  middle  class,  which  was 
forming  and  was  in  possession  of  attractive  taxing  resources, 
would  be  very  inadequately  reached  by  the  older  feudal 
methods  of  getting  in  extraordinary  revenues  and  many  of 
the  boroughs,  those  outside  the  royal  domain,  not  at  all. 
The  feudal  principle  of  an  advance  consent  to  an  extraor- 


184  THE  ORIGIN  OF  PARLIAMENT 

dinary  tax  had  been  so  deeply  impressed  upon  the  conscious- 
ness of  government  by  the  events  of  the  thirteenth  century 
that  it  had  not  been  violated  since  1215,  and  it  is  not  to  be 
wondered  at  that  it  expanded,  with  expanding  taxation,  to 
all  forms  of  revenue.  But  it  is  clear  also,  it  is  especially 
clear  in  the  writs  with  regard  to  the  trial  of  David,  that  the 
government  equally  wished  to  know  the  opinion  of  the  com- 
munities about  questions  of  policy,  especially  about  those 
involving  an  element  of  unusual  doubt  or  entailing  extra 
expense.  With  medieval  difficulties  of  intercommunication 
and  in  the  absence  of  all  modern  methods  of  expressing  and 
collecting  public  opinion,  bringing  together  in  one  place  well- 
informed  and  instructed  delegates  was  the  only  method  pos- 
sible of  ascertaining  or  forming  the  opinion  of  the  whole, 
and  this  would  apply  both  to  questions  of  policy  and  to 
taxation.  This  fact  is  to  a  large  extent  the  key  to  what 
takes  place.  Form  and  purpose  will  be  clear  to  our  minds 
if  we  can  make  real  to  ourselves  the  problem  presented  by 
the  difficulties  of  thirteenth  century  intercommunication  at 
the  time  when  men  became  more  conscious  of  common  in- 
terests and  of  new  classes  whose  opinion  should  be  known 
and  whose  resources  should  be  made  available  for  public 
service. 

The  experience  of  thirty  years  was  gathered  up  and,  in  the 
opinion  of  later  times,  confirmed  and  secured  in  the  so-called 

J  .model  parliament  of  1295.  It  is  in  this  sense,  as  a  culmina- 
tion of  past  progress,  that  this  parliament  can  be  called  a 
model,  not  as  stating  the  ideal  nor  as  copied  in  the  future, 
for  neither  in  composition  nor  in  organization  did  it  serve  as 
a  model.      It  was  however  an  unusually  complete  representa- 

J  tion  of  all  classes  in  the  nation.  At  the  end  of  summer, 
1295,  Edward  I  was  in  the  midst  of  serious  difficulties.  An 
expensive  struggle  with  Welsh  rebels  had  only  just  closed; 
war  with  France  was  still  going  on  and  with  Scotland  just 
beginning.  He  needed  and  wished  to  feel  both  that  he  had 
the  support  of  the  nation  behind  him  in  his  foreign  policy 


MODEL  PARLIAMENT  OF  1295  185 

and  that  they  were  ready  to  bear  the  heavy  expenses  nec- 
essary. Both  motives  acting  together  in  Edward's  mind 
undoubtedly  account  for  the  character  of  this  parliament. 

In  addition  to  the  old  great  council,  the  prelates  and 
magnates,  there  were  summoned  two  knights  from  the 
counties  and  two  burgesses  from  the  boroughs,12  and  also 
representatives  of  the  lower  clergy  under  the  so-called  pre- 
munierites  clause  in  the  writs  to  the  archbishops  and  bishops, 
these  representatives  of  the  clergy  forming  an  element  in 
this  parliament  which  did  not  become  permanent.  When  the 
parliament  came  together  it  organized  itself  in  three  houses, 
corresponding  to  the  three  "  estates "  of  feudal  society : 
the  first  the  clergy,  the  second  the  barons,  and  the  third  the 
burgesses.  The  knights  joined  the  barons  in  forming  the 
second  estate,  to  which  according  to  feudal  ideas  they  be- 
longed. Each  estate  also  taxed  itself  separately  and  at  a 
different  rate  from  the  others.  This  composition  and  or- 
ganization corresponded  to  that  which  became  permanent 
in  the  French  "  Estates  General  "  which  was  coming  into 
form  at  about  the  same  time.  It  evidently  meant  nothing 
to  Edward  in  the  way  of  rule  or  precedent.  Twelve  of  his 
twenty  later  parliaments  contained  no  representatives  of 
counties  or  towns.     Three  only  followed  the  model  of  1295. 

Many  students  of  the  period  have  attributed  to  Edward 
I  in  summoning  the  parliament  of  1295  a  clearer  idea  of  the 
representative  system  and  a  more  deliberate  purpose  to 
embody  it  in  a  permanent  legislative  organ  of  the  central 
government  than  the  facts  will  warrant.  Edward  was  one 
of  the  greatest  statesmen  among  English  kings  but,  if  he 
could  have  foreseen  the  future  to  this  extent,  he  would  be 
the  greatest  statesman  in  history.  His  statesmanship  con- 
sisted in  seeing  clearly  what  he  had  to  do,  chiefly  in  building 
up  the  greatness  of  England  as  he  understood  it,  and  in 
knowing  how  to  adapt  to  his  purposes  the  tools  he  had  to 
work  with,  not  with  entire  but  with  remarkable  success. 
isStubbs,   8.    C,  477-482;   A.   and   S.,   82-84. 


J 


186  THE  ORIGIN  OF  PARLIAMENT 

He  probably  knew  nothing  about  the  use  of  the  Roman 
maxim,  in  the  writs  of  1295,  which  is  often  referred  to  in 
this  connection  —  quod  omnes  tangit  ab  omnibus  approbetur, 
what  concerns  all  should  be  approved  by  all  —  until  he  saw 
it  in  his  writs ;  then  it  probably  meant  no  more  to  him,  or 
indeed  to  the  person  responsible  for  its  use,  than  the  earlier 
phrases  already  commented  on.  What  Edward  and  the  men 
of  his  time  were  really  doing,  we  can  see  clearly  enough 
because  we  know  what  the  later  history  was  to  be,  but  they 
could  not,  and  here,  as  in  so  many  other  places,  the  per- 
manent result  was  not  planned  nor  deliberately  intended. 
Indeed  we  have  no  right  to  say  that  what  was  done  in  Eng- 
land to  the  end  of  the  thirteenth  century  was  different  in 
character  or  meaning  from  what  was  being  done  at  the  time 
in  most  countries  of  western  Europe.  What  gives  to  the 
English  parliament  its  great  place  in  history  is  the  use  which 
was  made  of  it,  the  meaning  which  was  given  to  it,  after  its 
age  of  origin  was  past. 

Nor  is  it  likely  that  any  one  proposed  to  make  parliament 
finally  correspond  in  the  elements  of  which  it  was  composed, 
as  really  was  done,  with  the  assembly  of  the  itinerant  justice 
court  as  that  had  been  determined  by  the  reforms  of  Henry 
II.  The  writs  of  the  middle  of  the  century  calling  the 
county  court  to  meet  the  justices  indicate  the  union  in  it 
of  three  different  elements,  the  barons,  including  the  clerical 
barons,  the  freemen,  and  the  burgesses,  with  the  knights 
standing  between  the  barons  and  the  freemen.  At  the  end 
of  the  thirteenth  century  it  was  still  uncertain  with  which 
element  the  knights  would  permanently  identify  themselves, 
but  it  was  even  then  clear  that  two  new  elements  which  had 
no  place  in  the  older  great  council  had  been  added  to  it, 
making  it  correspond  in  the  classes  composing  it  to  the  county 
court.  These  two  elements  have  remained  in  parliament  dis- 
tinct from  the  baronial  and  from  one  another  down  to  the 
present  time  in  theory  at  least. 

Finally  these  additions  had  the  effect  of  carrying  through 


' 


TAXES  LEVIED  WITHOUT  CONSENT       187 

in  the  great  council  a  structural  change,  making  the  new 
institutionally  different  from  the  old.  It  was  a  change 
which  was  in  character  and  significance  closely  similar  to 
that  by  which  the  Anglo-Saxon  national  assembly  had  been 
made  into  the  great  council  of  the  feudal  age.  It  was 
brought  about,  like  the  earlier  change,  by  the  introduction 
of  a  new  principle  of  composition,  the  principle  of  represen- 
tation, or  what  was  to  be  representation  in  the  end. 

The  period  of  the  origin  of  parliament  may  fairly  be  said 
to  close  with  the  parliament  of  1295,  but  as  yet  the  new  in-  ^ 
stitution  was  unformed  and  its  future  place  among  the  insti- 
tutions of  government  uncertain.  To  the  great  work  which 
it  was  in  the  end  to  do  in  the  formation  of  the  English  con- 
stitution, the  protection  and  carrying  forward  of  the  tradi- 
tion begun  by  Magna  Carta,  the  accumulation  of  precedent 
upon  precedent  by  which  the  limited  monarchy  was  created, 
it  was  still  unequal.  For  the  present  the  less  trustworthy 
and  consistent  baronial  opposition,  which  had  made  the  be- 
ginning, must  carry  it  forward  if  it  was  to  be  continued. 
It  is  an  interesting  fact  that  almost  immediately  after  the 
parliament  of  1295  the  next  step  forward  was  taken  and  that, 
upon  the  principle  then  laid  down,  almost  the  whole  parlia-  * 
mentary  advance  of  the  next  century  was  based. 

The  grants  of  the  parliament  of  1295  did  not  relieve  Ed- 
ward of  his  financial  troubles.  These  continued  rather  to 
increase  because  of  the  difficulties  and  ill-success  of  his  war 
with  France  and  Scotland.  Neither  barons  nor  commoners 
were  as  interested  in  the  war  as  he,  and  he  found  it  impossible 
to  obtain  by  regular  grants  the  money  which  he  needed. 
The  clergy  also  were  resisting  taxation  by  the  state  and  were 
commanded  to  do  so  by  the  bull  Clericis  laicos  of  Boniface 
VIII  of  1296. 13  In  these  circumstances  Edward  believed, 
no  doubt  honestly,  that  he*Was  justified  by  the  necessity  of 
defending  the  realm  in  levying  taxes  without  previous  con- 
sent, and  he  excused  his  action  in  appeals  to  the  nation  on 
isA.  and  S.,  84-86. 


188  THE  ORIGIN  OF  PARLIAMENT 

this  ground.  He  obtained  the  form  of  a  grant  from  the 
barons  and  the  towns  in  an  irregular  assembly  which  was 
neither  in  summons  nor  in  composition  a  parliament  or  great 
council.  He  seized  the  wool  which  the  merchants  were  about 
to  export,  giving  tallies  for  it  with  a  promise  of  repayment, 
and  he  practically  outlawed  the  clergy  and  seized  a  good 
portion  of  their  lands. 

His  exactions  were  a  great  burden  upon  the  people  of  all 
classes  and  excited  general  opposition.  The  great  barons 
had  other  reasons  which  led  them  to  oppose  the  king,  as  a 
class  in  the  Quo  "warranto  proceedings,  and  as  individuals  in 
grievances  peculiar  to  one  and  another.  They  furnished  the 
leaders  of  the  opposition  as  in  1215  and  1258,  but  we  must 
recognize  here,  as  appearing  more  plainly  than  before,  the 
influence  of  personal  reasons  and  selfish  motives.  If  the 
barons  took  advantage  of  the  general  situation  to  serve  to 
some  extent  their  own  ends,  there  is  no  doubt  but  that  the 
general  situation  did  exist  and  that  it  was  in  truth  what 
would  have  been  regarded  by  a  later  age  as  a  constitutional 
crisis.  The  full  meaning  of  such  a  designation  was  no  doubt 
beyond  the  minds  of  1297,  and  yet  it  was  the  constitutional 
point  which  they  settled  and  it  was  into  constitutional  form 
that  they  threw  the  settlement.  The  demand  of  the  barons 
and  the  concession  which  they  secured  were  manifestly  in 
line  with  the  work  of  the  baronial  opposition  earlier  in  the 
century,  and  the  result  forms  the  greatest  advance  in  the 
development  of  the  limited  monarchy  since  Magna  Carta. 
In  spite  of  all  the  opposition  of  the  barons  and  of  their  re- 
fusal to  serve  with  him,  Edward  went  on  with  his  prepara- 
tions in  the  summer  of  1297  to  cross  with  an  army  to 
Flanders.  About  the  middle  of  August  the  barons  presented 
to  the  king  in  their  own  name  and  that  of  "  the  whole  com- 
munity of  the  land,"  a  formal  statement  of  their  grievances 
which  they  desired  the  king  to  redress.  They  complained 
of  the  heavy  burden  of  taxation  which  reduced  them  to  pov- 
erty; that  they  were  not  treated  according  to  law  and  cus- 


GRIEVANCES  OF  THE  BARONS  189 

torn;  that  the  provisions  of  Magna  Carta  and  the  Charter 
of  the  Forest  were  not  observed ;  and  of  the  new  customs 
duty  which  the  king  had  imposed  on  wool  and  which  they 
declared  amounted  to  one  fifth  of  the  value  of  the  land. 
Edward,  about  to  sail,  dodged  the  issue.  He  could  not 
answer,  he  said,  without  his  council  part  of  which  was  already 
in  Flanders,  and  he  did  sail  on  the  twenty-second,  leaving 
his  son,  the  young  Edward,  as  regent  to  grant  the  barons' 
demands,  for  there  can  be  no  doubt  but  that  it  was  under- 
stood that  he  should  do  so.  Early  in  October  the  conces- 
sion was  made  by  the  son,  and  under  date  of  November 
fifth  it  was  confirmed  by  the  father  in  a  formal  grant  known 
as  the  Confirmation  of  the  Charters.14 

Clauses  6  and  7  are  the  essential  ones  of  this  document  in 
permanent  influence  on  the  future.  After  an  enumeration  in 
the  5th  of  the  taxes  and  exactions  of  Edward,  the  6th  de- 
clares :  "  moreover  we  have  granted  for  us  and  our  heirs, 
as  well  to  archbishops,  bishops,  abbots,  priors  and  other  folk 
of  holy  church,  as  also  to  earls,  barons  and  to  all  the  com- 
munity of  the  land,  that  for  no  business  from  henceforth  will 
we  take  such  manner  of  aids,  mises,  nor  prises  from  our 
realm,  and  for  the  common  profit  thereof,  saving  the  ancient 
aids  and  prises  due  and  accustomed."  Clause  7  relates  to 
the  new  custom  on  wool,  "  the  maletote,"  and  provides  that 
the  king  "  shall  never  take  this  nor  any  other  without  their 
common  assent  and  good  will ;  saving  to  us  and  our  heirs 
the  custom  of  wools,  skins  and  leather  granted  before  by 
the  commonalty."  The  reservation  to  the  king  in  clause  6 
corresponds  to  that  in  Magna  Carta  chapter  12  and  that  in 
clause  7  refers  to  the  "  ancient  custom  "  granted  Edward  in 
1275.  In  a  document  from  the  same  time  whose  exact  or- 
igin we  do  not  know,  perhaps  a  statement  of  the  barons' 
demands,  perhaps  an  unofficial  abstract  of  the  Confirma- 
tion,15 but  known  to  later  times  as  the  "  statute  "  De  tallagio 

"Stubbs,  8.  C,  490-493;  A.  and  S.,  86-88. 
isStubbs,  AT.  C,  443-444. 


\ 


190  THE  ORIGIN  OF  PARLIAMENT 

non  concedcndo,  though  it  was  certainly  not  a  statute, 
tallage  is  included  among  the  exactions  for  which  consent 
must  be  obtained.  It  is  probable  that  the  word  was  used 
in  mere  carelessness,  for  that  age  had  not  forgotten  what 
tallage  was.16  As  an  exaction  from  serfs,  theoretically  at 
the  lord's  disposal  with  all  their  property,  tallage  was  not 
a  tax  but  a  return  upon  capital  invested,  an  altogether  dif- 
ferent matter.  As  such  the  barons  had  no  right  to  insist 
that  the  king  should  give  it  up,  and  he  had  no  idea  that  he 
had  done  so,  for  he  laid  a  tallage  on  his  domains  in  1304. 

The  document  of  1297  is  called  the  Confirmation  of  the 
Charters,  but  the  name  gives  no  indication  of  its  place  in 
the  history  of  the  constitution ;  it  rather  conceals  it.  As  a 
part  of  the  foundation  on  which  the  constitution  was  built, 
the  Confirmation  is  hardly  less  important  than  the  Great 
Charter  itself.  If  we  except  the  two  fundamental  princi- 
ples which  underlie  everything  else,  the  most  important  pro- 
vision of  the  Charter  in  its  bearing  on  the  building  up  of  the 
constitution  was  that  previous  consent  must  be  obtained 
for  any  extraordinary  tax,  for  any  not  included  in  the  cus- 
tomary feudal  payments.  The  language  used  is  feudal  but 
usage  gave  to  the  word  "  aid  "  a  wide  range  of  meaning,  and 
no  doubt  to  the  men  of  that  time  such  non-feudal  forms  of 
taxation  as  had  occasionally  been  levied,  if  they  thought  of 
them  at  all,  would  be  covered  by  it.  However  this  may  be, 
the  principle  expressed  became  the  ruling  one  for  the  cen- 
tury not  merely  for  feudal  but  for  non-feudal  taxation,  and 
what  is  characteristic  of  the  century  is  the  steady  growth 
of  non-feudal  taxation,  as  we  have  already  seen.  That  this 
provision  of  the  Charter  of  1215  was  left  out  of  Henry  Ill's 
reissue  in  1225,  which  became  the  Magna  Carta  of  the  law, 
made  no  difference  with  the  practice.  The  requirement  was 
a  part  of  current  feudal  law,  and  it  was  more  consistently 
obeyed  than  some  of  the  provisions  which  remained  in  the 
Charter.  What  the  Confirmation  of  the  Charters  of  1297 
i«Stubbs,  S.   C,  493-494;   A.   and   S.,  88-89. 


PRINCIPLE  OF  TAXATION  191 

did  was  to  restore  it  to  the  tradition  of  Magna  Carta  and  t 
pledge  the  king  and  his  heirs  strictly  to  observe  it,  not  now 
however  expressed  in  feudal  language  but  broadened  out  to 
cover    all    the    non-feudal    taxation    of   which   the    time    had 
knowledge. 

There  can  be  no  question  but  that  the  men  who  framed  this 
document  intended  to  cover  all  forms  of  taxation,  except 
the  feudal  dues,  and  believed  they  had  done  so.  And  in  the 
future  whenever  this  issue  was  squarely  raised  this  was  the 
interpretation  which  was  placed  upon  the  principle.  From 
this  date  on  it  was  never  called  in  question,  as  a  fundamental 
rule  of  action,  by  any  English  king.  Successive  kings  might  ^ 
try  to  avoid  its  effect  by  inventing  new  forms  of  revenue  to 
which  they  could  say  it  did  not  apply  or  by  unwarranted 
extensions  of  old  revenues,  but  from  1297  it  was  definitely 
established  as  a  fundamental  law  of  the  constitution  that  the 
king  was  dependent  for  his  revenue  upon  a  previous  grant. 
It  is  in  the  form  given  it  in  the  Confirmation  that  this  prin- 
ciple becomes  the  foundation  of  the  power  of  parliament 
in  the  fourteenth  century  and  ultimately  of  the  whole  con- 
stitution. 

Bibliographical  Note. —  G.  B.  Adams,  The  Origin  of  the 
English  Constitution,  1920.  E.  Barker,  The  Dominican  Order 
and  Convocation,  1913.  N.  S.  B.  Gras,  The  Early  English  Cus- 
toms System,  1918.  D.  Pasquet,  Les  Origines  de  la  Chambre  des 
Communes,  1914.  L.  O.  Pike.  Constitutional  History  of  the 
House  of  Lords,  1891.  A.  F.  Pollard,  The  Evolution  of  Parlia- 
ment, 1920.  G.  W.  Prothero,  Simon  de  Montfort,  1877.  L. 
Riess,  Ursprung  des  Englischen  UnterJiauses,  Historische  Zeit- 
schrift,  lx.  1,  1888.  A.  B.  White,  The  Concentration  of  Repre- 
sentatives, A.  H.  R.,  xix,  735,  1914. 


CHAPTER  VIII 

THE  GROWTH  OF  PARLIAMENT 

The  two  great  ages  in  the  growth  of  parliamentary  power 
in  the  history  of  the  constitution  are  the  fourteenth  and  the 
seventeenth  centuries  for,  although  there  was  also  great 
advance  in  this  particular  in  the  sixteenth  and  nineteenth, 
the  relative  advance  in  these  two  ages  of  progress,  as  de- 
termined by  the  point  from  which  they  started,  cannot  be 
compared  with  that  in  the  former  two.  If  the  end  of  the 
fourteenth  century  was  to  see  parliament  firmly  established 
in  its  own  place  in  the  state,  in  possession  of  a  considerable 
body  of  definite  rights  which  it  had  defended  successfully 
against  the  Crown,  and  clearly  to  be  recognized  by  us  as 
already  the  successor  of  the  baronial  opposition  to  be  the 
protector  of  the  fundamental  principles  of  the  constitution, 
it  was  something  very  different  at  the  beginning  of  that 
century.  Notwithstanding  all  the  progress  of  the  thirteenth 
century,  parliament  entered  the  fourteenth  still  vague  and 
formless,  with  composition,  organization  and  methods  of 
working  still  undetermined. 

So  accustomed  are  we  to  think  of  the  English  constitu- 
tion as  one  in  which  parliament,  or  more  specifically  the 
house  of  commons  as  representing  the  nation,  is  in  supreme 
control  of  all  the  functions  and  operations  of  government 
that  it  may  require  an  effort  for  us  to  remember  that  at  the 
beginning  of  the  fourteenth  century  we  stand  at  the  be- 
ginning of  parliament  as  the  organ  of  representative  gov- 
v'ernment  not  merely  in  England  but  in  all  history.  What 
it  was  to  be,  the  share  which  it  was  to  take  in  actual  gov- 
ernment, was  still  to  be  determined.     As  yet  nothing  was 

192 


START  OF  REPRESENTATIVE  SYSTEM      193 

fixed;  the  rights  and  functions  of  the  new  institution  were 
vague  and  undefined;  nothing  was  known  even  of  its  pos- 
sibilities. As  the  successor  of  the  feudal  great  council  and 
heir  of  the  principles  into  which  feudal  consent  to  taxation 
had  been  transformed  during  the  thirteenth  century,  that 
each  class  in  the  community  should  give  consent  to  its  own 
taxation,  parliament  had  a  starting  point  of  the  greatest 
strategic  value  from  which  to  begin  its  advance  to  power. 
How  conscious  parliament  was  of  the  meaning  of  this  ad- 
vantage we  hardly  dare  to  say  and  at  most  it  was  a  starting 
point  only.  In  all  probabilit}T  we  must  say,  as  of  the  age  of 
formation  just  before,  that  it  was  the  practical  purpose  of 
the  moment  rather  than  any  theory  of  government  or  fore- 
sight of  a  free  constitution,  that  determined  each  step  as  it 
was  taken. 

The  struggle  to  win  full  control  of  national  revenues  and 
expenditures  was  to  be  long  and  severe.  In  legislation  hardly 
even  a  starting  point  for  the  new  institution  had  yet  been 
found,  and  in  the  determination  of  the  general  policy  of  the 
government,  parliament  foresaw  its  own  future  so  little  that 
it  sometimes  vigorously  repudiated  such  an  ambition  and 
laid  the  foundations  of  its  later  power  in  entire  unconscious- 
ness of  what  it  was  doing.  Yet  to  secure  these  three  things 
was  necessary  before  modern  parliamentary  government 
could  come  into  existence :  complete  control  by  parliament. 
of  all  national  revenue  and  expenditure;  the  exclusive  exer- 
cise of  the  legislative  right  by  parliament,  including  the 
house  of  -commons  as  an  equal  partner  in  every  act ;  and  the 
power  to  determine  the  general  policy  which  at  any  moment 
of  time  should  give  character  and  purpose  to  the  govern- 
ment. At  the  end  of  the  fourteenth  century  no  one  of  these 
had  been  so  far  secured  as  to  be  beyond  future  danger,  but 
great  progress  had  been  made  towards  them  all  and  in 
regard  to  the  first  at  least  but  little  comparatively  speaking 
yet  remained  to  be  done. 

If  parliament  entered  the  fourteenth  century  still  vague 


194  THE  GROWTH  OF  PARLIAMENT 

and  formless  with  respect  to  its  composition  and  its  own  in- 
ternal organization,  these  questions  were  speedily  settled. 
Steadily  it  became  more  and  more  the  understood  thing  that 
a  parliament  of  full  powers  should  contain  the  two  new  ele- 
ments, the  representatives  of  the  counties  and  of  the  towns. 
The  great  council  meeting  without  the  new  elements  retained 
for  a  long  time  something  of  its  old  powers,  and  even  the 
small  council  acting  with  the  king,  in  ways  that  infringed 
upon  the  field  of  parliament,  but  from  this  century  on  these 
were  merely  survivals  of  steadily  diminishing  significance.  A 
true  parliament  with  full  legislative  and  other  rights  is  the 
new  institution,  not  the  old. 

The  final  form  of  organization  was  closely  connected  with 
the  final  method  of  composition.  The  ecclesiastical  element, 
the  representatives  of  the  general  clergy,  withdrew  before 
the  middle  of  the  century  to  perform  their  parliamentary 
duties  in  assemblies  of  their  own,  called  "  convocation," 
which  had  existed  as  legislative  assemblies  of  the  clergy  for 
a  century.  This  act  of  theirs  was  brought  about  by  their 
determination  to  keep  in  their  own  hands  the  right  to  grant 
their  own  taxes  and,  while  it  is  evidence  of  the  thirteenth 
century  right  of  each  class  separately  to  decide  what  it  would 
give  the  state,  it  indicates  to  some  extent  a  fear  on  their 
part  that  this  was  a  disappearing  right.  They  continued 
for  some  time  to  be  summoned  to  parliament  by  the 
premunientes  clause,  but  they  did  not  attend  as  an  estate, 
and  retained  the  right  separately  to  vote  their  taxes  until 
1664.  By  their  withdrawal  parliament  was  left  to  be  com- 
posed of  the  second  and  third  estates  only,  for  the  bishops 
and  abbots  remained  in  the  house  of  lords  as  barons,  as  mem- 
bers of  the  great  council,  not  as  clergy. 

By  this  renunciation  of  the  clergy,  however,  the  ques- 
tion of  the  number  of  "  houses  "  in  the  new  institution  was 
not  definitely  settled.  In  the  thirteenth  century  the  practice 
of  uniting  the  new  elements  in  one  assembl}7  with  the  great 
council  had  been  common.     In  Europe  at  large  practice  was 


KNIGHTS  JOIN  BURGESSES  195 

not  uniform.  In  Aragon  the  knights  formed  a  house  by 
themselves,  in  most  states  they  joined  the  barons.  In 
Sweden  there  were  four  houses,  the  representatives  of  the 
country  freemen  acting  by  themselves ;  in  Scotland  there 
remained  only  one.  Nearly  everywhere  however  the  repre- 
sentatives of  the  towns  formed  a  separate  part  of  the  assem- 
bly. In  England  the  problem  was :  will  the  knights  finally 
associate  themselves  with  the  barons  in  the  upper  house  or 
join  the  burgesses  in  the  lower.  In  the  first  part  of  the 
reign  of  Edward  III  the  question  was  settled.  In  spite  of 
the  fact  that  they  were  drawn  from  an  aristocratic  land- 
owning class,  a  minor  aristocracy,  the  knights  joined  with 
the  commercial  class  of  the  towns  to  form  the  house  of 
commons.  This  peculiar  result  in  England  was  no  doubt 
due  to  peculiar  conditions  which  were  briefly  indicated  in 
the  last  chapter. 

The  merchant  burgher,  the  political  equal  of  the  minor 
baron  in  the  county  court,  was  in  fourteenth-century  Eng- 
land regarded  as  his  social  equal  also,  married  his  sons 
and  daughters  into  knightly  families  without  exciting  oppo- 
sition, and  found  no  obstacle  to  the  purchase  of  land  or  even, 
if  he  wished,  to  the  foundation  of  a  knightly  family  of  his 
own.  While  barriers  of  custom  and  interest  were  being 
raised  between  the  great  and  minor  barons,  they  were  being  . 
broken  down  between  the  latter  and  the  burghers.  In  the ' 
fourteenth  century  the  English  knights  finally  found  them- 
selves more  at  home  with  the  burgesses,  and  the  house  of 
commons  was  formed  by  the  combination  of  these  two  classes. 
This  is  probably  all  that  we  need  to  say  by  way  of  explana- 
tion, the  knights  found  themselves  more  at  home  with  the 
burgesses. 

This  unintended  event  probably  had  much  to  do  with  the 
rapid  advance  of  parliament  in  power  during  the  fourteenth 
centur}',  for  that  advance  in  reality  was  not  that  of  both 
houses  of  parliament  equally  but  of  the  house  of  commons. 
The  house   of  lords   considered  by   itself  was   relatively   of 


196  THE  GROWTH  OF  PARLIAMENT 

less  importance  at  the  close  than  at  the  beginning1  of  the 
century.  The  house  of  commons  evidently  had  in  that  age 
admirable  leadership,  a  high  degree  of  self-confidence,  and  a 
feeling  of  equality  with  lords  and  royal  ministers  which  were 
not  generally  characteristics  of  the  third  estate  in  the  Europe 
of  that  day  nor  for  long  afterwards.  The  bicameral  legis- 
lature has  been  highly  praised  by  many  students  of  politics 
and  by  some  has  been  attributed  to  the  political  genius  of 
the  Anglo-Saxon  race.  In  nearly  all  constitutions  deriving 
from  the  English  it  has  been  the  preferred  form,  and  the 
choice  has  vindicated  itself  in  practice.  It  should  be  clear 
however  from  the  history  of  the  formation  of  parliament  that 
in  the  fourteenth  century  it  was  not  the  result  of  deliberate 
choice,  t'hat  there  was  no  exercise  of  political  genius  in  the 
matter,  but  that  accident,  the  withdrawal  of  the  clergy, 
"  largely  determined  the  result. 

It  must  be  noticed  also  that  the  formation  of  parliament 
created,  if  not  precisely  the  house  of  lords  since  that  was  the 
old  great  council,  at  least  the  peerage  of  England  as  that 
came  to  be  understood  later.  Undoubtedly  the  essential 
fact  in  this  creation  is  that  parliament  received  its  definite 
j  constitution  before  any  idea  of  a  nobility,  of  a  modern  social 
nobility,  took  the  place  of  a  baronage.  The  peer  was  sum- 
moned to  the  house  of  lords  as  a  baron  for  a  given  barony 
which  could  be  held  by  only  one  man  at  a  time.  The  other 
members  of  his  family  had  no  place  in  the  house  of  lords 
but  were  free  to  go  into  the  house  of  commons  and  were 
held  as  commoners  in  all  legal  matters.  From  this  fact 
"largely  it  happened  that  the  English  nobility  never  become 
a  caste  with  closed  ranks  and  privileges  hereditary  in  all 
branches,  but  was  constantly  reinforced  from  the  commons 
and  constantly  reinforced  the  commons  with  its  own  best 
blood. 

In  entering  upon  the  period  of  its  growth  parliament  had 
one  foundation  stone  of  power  already  laid  for  it  in  the 
principle  of  the  Confirmation  of  the  Charters  of  1297  that 


PARLIAMENTARY  CONTROL  OF  REVENUE      197 

the  king  must  depend  for  his  revenue  upon  a  previous  grant.  S 
It  seems  quite  certain,  however,  that  parliament  discovered 
only  by  degrees  the  use  which  it  could  make  of  this  principle 
in  fortifying  its  position  in  the  state,  and  that  it  discovered 
even  earlier  that  the  principle  was  not  quite  so  comprehen- 
sive as  the  men  who  framed  it  probably  intended  it  to  be. 
It  was  the  beginning  of  a  foundation,  but  the  real  work  of 
building  up  the  power  of  parliament  had  still  to  be  done. 
If  it  was  to  be  accomplished,  the  three  things  already  indi- 
cated upon  which  that  power  depended  had  first  to  be  ac- 
complished :  jjrst,  the  establishment  of  the  control  of  par- 
liament over  all  forms  of  public  revenue;  second,  the  estab- 
lishment of  the  right  of  the  house  of  commons  to  an  equal 
voice  in  all  law-making;  and  third,  the  establishment  of  the 
right  of  parliament  to  supervise  and  direct  the  general  policy 
of  the  government.  Progress  towards  these  ends,  more 
rapid  and  farther  in  some  directions  than  in  others,  forms 
the  history  of  the  fourteenth  century. 

Almost  immediately  after  the  Confirmation  of  the  Charters 
the  next  step  forward  was  taken,  the  first  in  the  slow  process 
of  learning  how  to  use  against  the  Crown  the  weapon  which 
1297  had  furnished.  The  guardianship  of  the  constitution 
which  was  beginning  to  form  was  still  in  the  hands  of  the 
baronial  opposition,  as  we  have  seen,  rather  than  of  parlia- 
ment, but  the  new  step  was  the  first  move  in  the  slow 
crossing  over  of  constitutional  development  from  the  line 
of  baronial  to  that  of  parliamentary  supervision  and  pro- 
tection. Edward  II  was  successful  before  he  had  been  many 
months  in  possession  of  the  throne  in  exciting  against  himself 
a  vigorous  and  determined  opposition,  and,  though  we  must 
notice  that  this  opposition  to  Edward  II  was  the  most  short- 
sighted, narrow  and  selfish  of  any  down  to  its  time,  it  still 
did  follow  the  precedents  of  the  thirteenth  century,  it  did 
throw  its  demands  and  results  into  constitutional  forms, 
and  it  did  carry  farther  the  fundamental  principles  of 
Magna  Carta.     In  the  parliament  of  1309,  a  parliament  of 


J 


198  THE  GROWTH  OF  PARLIAMENT 

the  new  type  not  a  mere  great  council,  a  grant  of  taxes  was 
made  to  the  king  "  upon  this  condition  "  that  he  give  atten- 
tion to  a  certain  list  of  grievances  attached  to  the  grant, 
of  which  the  commons  complained,  and  find  a  remedy  for 
them.  The  list  in  itself  is  not  important  and  marks  no  con- 
stitutional advance.  It  was  also  a  generation  or  more  be- 
fore the  attaching  of  conditions  to  grants  of  money  became  a 
recognized  feature  of  parliamentary  procedure,  and  we  are 
hardl}T  justified  in  beginning  with  1309,  or  with  any  of  the 
less  complete  instances  which  preceded  it,  the  continuous 
history  of  parliament's  use  of  the  financial  necessities  of  re- 
luctant kings  to  force  them  to  grant  reforms.  It  is  inter- 
esting, however,  to  notice  how  quickly  after  it  became  possi- 
ble, the  new  parliament  began  to  make  experiment  with  this 
weapon,  and  certainly  to  establish  the  precedent  afterwards 
followed. 

The  reign  of  Edward  II  (1307-1327)  was  of  value  con- 
stitutionally, not  so  much  in  the  positive  contributions  which 
it  made  towards  the  up-building  of  the  limited  monarchy, 
as  in  the  precedents  it  established  of  'coercion  of  the  king 
which  were  of  assistance  later  in  constitutional  crises  of  a 
more  real  kind.  A  new  clause  in  the  coronation  oath  re- 
corded the  progress  which  had  been  made  since  1215  in  clearer 
conception  of  the  fundamental  principles  of  Magna  Carta. 
Edward  was  asked :  "  Sire,  do  you  grant  to  hold  and  keep 
the  laws  and  righteous  customs  which  the  community  of 
your  realm  shall  have  chosen,  and  will  you  defend  and 
strengthen  them  to  the  honour  of  God  and  to  the  utmost  of 
your  power?  "  In  1311  the  barons,  following  the  prece- 
dent of  1258,  put  the  Crown  once  more  into  commission  in 
an  act  called  the  "  ordinances  "  and  made  the  filling  of  all 
the  great  offices  dependent  on  the  consent  of  the  baronage.1 
The  ordinances  regulated  many  matters  according  to  the 
views  of  the  barons,  but  they  were  ntirely  in  the  spirit  of 
the  Provisions  of  Oxford  and  they  did  not  advance  the  con- 

i  Extracts,  A.  and  S;  92-95. 


DEPOSITION  OF  THE  KING  199 

stitutional  development  beyond  that  point,  except  by  making 
a  new  and  more  recent  precedent. 

In  1322  the  king  was  again  strong  enough  to  secure  the 
repeal  of  the  ordinances  in  an  act  of  parliament  whose  con- 
stitutional importance  has  been  greatly  exaggerated.  It 
contained  this  sentence:  "The  matters  which  are  to  be 
established  for  the  estate  of  our  lord  the  king  and  of  his 
heirs,  and  for  the  estate  of  the  realm  and  of  the  people, 
shall  be  treated,  accorded  and  established  in  parliament  by 
our  lord  the  king  and  by  the  consent  of  the  prelates,  earls 
and  barons,  and  the  commonalty  of  the  realm,  according  as 
it  hath  been  heretofore  accustomed."  2  These  words  have 
been  supposed  by  some  to  secure  the  constitutional  right  of 
the  commons  to  a  voice  in  all  legislation,  and  by  others  in  all 
legislation  of  a  constitutional  character,  but  both  inferences 
are  improbable.  The  language  plainly  indicates  that  no 
change  in  past  practice  was  intended,  and  as  a  fact  none  was 
made,  for  it  was  long  before  either  of  the  suggested  rights 
was  gained  by  the  commons.  It  is  not  likely  that  any  special 
emphasis  was  attached  to  the  word  "  commonalty,"  and  the 
sentence  does  no  more  than  to  indicate  the  advance  which  had 
been  made  in  recognizing  the  place  of  parliament  in  the 
state. 

In  1327  King  Edward  was  deposed  by  a  revolution  which 
left  him  without  support.  The  reason  for  the  deposition 
was  personal  hostility  to  the  king,  but  the  "  Articles  "  of  ac- 
cusation placed  it  upon  constitutional  grounds,3  and  the 
precedent  rendered  a  valuable  service  in  the  more  significant 
cases  of  Richard  II  and  James  II.  The  real  work  of  the 
baronial  opposition  in  the  reign  has  been  well  summed  up 
in  these  words:  "  The  best  that  can  be  said  of  the  baronial 
opposition  in  general  is  that  it  sought  to  subject  the  king, 
no  less  than  his  people,  to  the  rule  of  law.  The  great  prin- 
ciple contained  in  Magna  Carta  that  the  king  was  under  the 

2  A.  and  S.,  96-97. 
a  A.   and   S.,   99. 


200  THE  GROWTH  OF  PARLIAMENT 

law,  was  very  open  to  misinterpretation,  and  the  policy  of 
the  barons  partly  lay  them  open  to  this  charge.  Viewed 
from  the  best  light  the  aims  of  the  opposition  were  to  secure 
the  omnipotence  of  law  and  to  lessen  the  powers  the  king 
might  exercise  to  the  detriment,  or  in  negation,  of  law." 

In  the  remainder  of  the  century,  in  the  reigns  of  Edward 
III  (1327-1377)  and  of  his  grandson  Richard  II  (1377- 
1399),  large  additions  were  made  to  the  positive  laws  of  the 
constitution  and  the  way  prepared  for  others  at  a  later 
time.  These  were  chiefly,  as  has  been  already  said,  in  the 
increase  of  the  power  of  the  house  of  commons  in  the  gov- 
ernment. 

It  was  in  the  control  of  taxation  that  the  greatest  prog- 
ress was  made  in  this  age,  and  from  the  starting  point  which 
parliament  thus  secured  in  its  sole  power  to  provide  rev- 
enue, it  even  reached  forward  to  begin  the  practice  of  ex- 
amining and  criticizing  the  way  in  which  the  revenue  was 
used.  The  men  of  1297  when  they  pledged  the  king  in  the 
Confirmation  of  the  Charters  to  take  no  taxes  without  pre- 
vious consent  may  have  thought  that  they  had  cut  off  all 
important  sources  of  revenue,  but  within  a  few  years  they 
discovered  their  mistake.  The  largest  and  most  lucrative 
product  for  export  of  the  England  of  the  fourteenth  cen- 
tury was  wool,  and  English  wool  was  the  chief  supply  of 
the  rich  manufacturing  cities  which  had  grown  up  in  the 
Low  Countries  across  the  Channel.  The  foreign  merchants 
who  traveled  through  England  to  buy  up  the  wool  from  the 
monasteries  and  manorial  lords  were  not  interested  in  the 
English  constitution  nor  in  the  problem  of  controlling  the 
king  through  taxation.  On  the  other  hand,  they  were 
greatly  interested  in  the  protection  and  privileges  which  the 
king  could  give  them  in  the  port  towns,  in  the  markets,  and 
on  the  highways  of  the  country,4  and  they  stood  ready  to 
pay  him  for  what  he  had  to  give.  Even  the  native  English 
merchants,  though  comparatively  few  in  number,  were  not 
*  Cf.  Stubbs,  S.  C,  496-497. 


CONTROL  OF  TAXATION  201 

oblivious  to  the  immediate  advantage.  It  was  a  simple  matter 
to  arrange  between  the  merchants  and  the  king  an  export 
duty  on  the  sack  of  wool  which  was  easy  to  collect  and 
richly  productive  not  merely  from  the  size  of  the  crop  but 
also  from  the  high  money  value  of  the  pound  of  wool.  This 
was  a  difficult  matter  for  parliament  to  deal  vith  because 
Edward  III  argued  with  much  plausibility  that  the  foreigners 
paid  the  tax  and,  though  parliament  detected  the  fallacy  and 
insisted  that  the  tax  was  deducted  from  the  purchase  price,5 
it  was  only  towards  the  end  of  the  reign  that  the  king  was 
finally  brought  to  renounce  the  practice  for  good  and  all. 

This  method  of  raising  new  customs  duties  by  separate 
negotiation  with  the  merchants  was  based  no  doubt  on  the 
thirteenth  century  principle  of  separate  class  taxation. 
There  was  also  left  the  king  by  express  sanction  in  the  Con- 
firmation of  the  Charters  the  possibility  of  raising  some  rev- 
enue by  the  old  feudal  aids  and  other  payments.  Of  these 
the  only  source  of  revenue  approaching  the  character  of  a 
tax  was  the  right  to  tallage  the  domain  towns.6  Tallages 
were  taken  in  1304,  1312,  and  1332.  But  the  towns  were 
now  speaking  with  so  weighty  a  voice  that  it  was  not  likely 
that  they  would  long  submit  to  an  arbitrary  exaction,  made 
even  at  infrequent  intervals.  In  1332  at  the  request  of  par- 
liament, which  granted  a  general  tax,  Edward  III  withdrew 
the  tallage  and  promised  that  he  would  not  make  use  of  it 
again  except  "  as  had  been  done  by  his  ancestors."  In  form 
this  was  really  not  a  renunciation,  but  tallage  was  not  again 
demanded. 

The  power  of  separate  negotiation  with  the  merchants 
was  a  more  serious  matter  because  of  the  annual  recurrence 
of  the  tax,  the  value  of  the  wool  crop,  and  its  relation  to  the 
wealth  of  the  country.  In  1303  Edward  I  with  the  mer- 
chants established  the  parva  or  nova  custuma  on  wools  and 
other    articles.     This    was    annulled    by    the    ordinances    of 

s  Compare  A.  and  S.,  No.  65,  p.  110,  with  No.  68. 
«Stubbs,  S.   C,  497-498. 


202  THE  GROWTH  OF  PARLIAMENT 

1311  but  renewed  by  Edward  II  in  1322  and  confirmed  on 
the  accession  of  Edward  III,  who  later  with  his  council 
imposed  other  taxes  of  the  kind.  Repeatedly  parliament  or 
the  commons  petitioned  against  these  exactions  or  attempted 
to  set  up  a  precedent  in  its  own  favor  by  granting  a  similar 
tax.  In  1253  the  nova  custuma  was  made  a  legal  grant  by 
parliamentary  action  incorporating  into  it  the  statute  of 
Staples.  In  1340  it  was  solemnly  enacted,  as  one  of  the 
conditions  of  a  grant  of  money,  that  no  charge  nor  aid 
should  henceforth  be  made  but  by  the  common  assent  of 
the  prelates,  earls,  barons  and  the  commons,  and  that  in 
parliament.7  This  act  was  intended  to  remedy  the  defects 
of  the  Confirmation  of  the  Charters,  but  the  king  yielded  re- 
luctantly, and  it  was  necessary  to  repeat  the  prohibition  in 
1362  and  1371.  It  can  be  said  however  that  the  precedents 
of  the  reign  do  fill  out  the  deficiencies  of  the  Confirmation  of 
the  Charters,  so  far  as  experience  had  yet  revealed  them, 
and  vest  the  granting  of  all  legal  revenue,  not  now  in  the 
vague  "  common  consent  of  the  realm,"  as  in  1297,  but 
clearly  and  definitely  in  a  parliament  of  which  the  house  of 
commons  was  a  fairly  equal  part. 

Through  these  experiences  also  parliament  was  brought  to 
a  full  understanding  of  the  nature  of  the  weapon  which  its 
control  of  taxation  had  given  it.  In  1339  the  commons, 
complaining  of  grievances,  postponed  a  grant  to  the  next 
parliament  and  in  1340  drew  up  a  formal  list  of  reforms 
which  they  attached  as  conditions  to  their  grant  and  which 
the  king  consented  to  make.8  In  1344  the  same  precedent 
was  followed,  and  in  1348  it  was  insisted  that  the  redress  of 
grievances  must  precede  the  granting  of  a  tax,  and  the 
precedents  of  1340  and  1344  were  followed  on  an  even 
larger  scale. 

The  long  war  with  France  which  filled  so  much  of  the 
reign  of  Edward  III  created  a  situation  peculiarly  favorable 

t  A.   and  S.,  104-105. 
8  A.   and   S^.   102-104. 


PARLIAMENTARY  APPROPRIATIONS        203 

to  parliament.  The  king  was  in  constant  need  of  money 
and  it  would  very  naturally  seem  to  him  more  than  once 
that  what  he  expected  to  gain  in  France  was  more  important 
than  the  concession  which  parliament  was  at  the  moment 
demanding.  No  earlier  English  king  had  been  obliged  to 
ask  for  such  frequent  grants  of  money  as  Edward  III.  To 
the  members  of  parliament,  not  familiar  with  the  heavy  ex- 
penses of  the  war,  it  seemed  not  unnaturally  that  the  money 
must  somehow  be  wasted.  They  were  disposed  to  demand  an 
explanation  and  to  say  to  the  king:  What  have  you  done 
with  the  money  which  we  gave  you  last  year  for  this  same 
purpose?  The  king  knew  very  well,  however,  the  weight  of 
expense  which  the  war  entailed,  and  it  may  quite  likely  have 
seemed  to  him  that  an  easy  way  of  proving  his  faith  was  to 
allow  parliament  to  elect  the  treasurers  who  should  collect 
and  spend  the  money  granted,  and  to  allow  the  treasurers 
to  exhibit  their  accounts  in  parliament,  or  to  let  them  be 
audited  by  a  parliamentary  committee. 

In  1340  a  parliamentary  committee  was  appointed  to 
examine  the  accounts  of  the  collectors  of  the  last  grant. 
In  1341  it  was  enacted  that  commissioners  should  be  ap- 
pointed for  the  same  purpose.  In  1344  parliament  de- 
manded that  the  money  granted  should  be  spent  for  the  pur- 
pose for  which  it  had  been  asked.  In  1348  it  granted  money 
specifically  to  defend  the  realm  against  Scotland.  In  1353 
the  wool  tax  was  to  be  used  for  the  war  alone.  In  1377 
parliament  appointed  two  persons,  sworn  in  parliament,  to 
receive  the  money  granted  and  to  spend  it  for  the  war  and 
for  nothing  else.9  Edward  knew  the  honesty  of  his  own 
intentions  and  what  interested  him  most  was  that  by  such 
a  simple  expedient  parliament  could  clearly  be  convinced 
that  the  king  had  spent  the  money  as  he  had  engaged  to 
spend  it.  Neither  the  king  nor  parliament  understood  what 
was  involved  in  this  innocent-seeming  beginning.  It  was  in 
truth  the  starting  point  of  parliamentary  appropriations,  of 

»A.  and  S.,  136-137. 


204  THE  GROWTH  OF  PARLIAMENT 

appropriating  the  national  revenue  to  government  expenses 
in  detail,  which  modern  Anglo-Saxon  parliaments  practi- 
cally regard  more  highly  than  the  more  fundamental  right 
of  granting  the  revenue,  because  it  secures  in  a  high  degree 
though  indirectly  a  control  of  government  policy.  If  par- 
liament refuses  an  appropriation  for  a  specific  purpose, 
government  must  abandon  that  purpose.  No  one  in  the 
fourteenth  century,  however,  saw  this  possibility  and  though 
the  practice  begun  under  Edward  III  became  the  rule  under 
Richard  II  and  was  carried  still  farther  in  the  Lancastrian 
period,  parliament  was  not  fully  enough  developed  even  in 
the  fifteenth  century  to  understand  all  that  this  right  might 
mean  and  to  defend  it.  Modern  appropriations  to  minute 
details  of  government  expenditure  had  to  await  the  full  estab- 
lishment of  parliamentary  powers  at  the  end  of  the  seven- 
teenth centur}7. 

It  was  an  easier  and  simpler  matter  to  establish  parlia- 
mentary control  of  all  taxation  than  to  secure  the  equal  voice 
of  the  house  of  commons  in  all  legislation.  In  taxation  an 
old  process,  the  granting  of  money  by  the  separate  estates, 
was  naturally  inherited  by  parliament  and  merely  expanded 
to  meet  new  conditions.  In  legislation  there  was  much  less 
to  inherit  and  expand.  Legislation,  as  a  process  in  which 
the  actors  had  a  clear  consciousness  of  what  they  were  do- 
ing, was  newer  than  taxation.  There  had  been  much  legis- 
lation during  the  feudal  age  but  of  a  different  type  from 
the  modern.  It  was  closely  associated  with  the  judicial 
functions  of  the  assembly,  and  in  feudal  theory  the  actual 
decision  that  a  thing  should  be  law  was  the  king's  act  only, 
as  the  decision  in  a  law-suit  was  his  alone.  In  both  cases 
the  decisions  must  be  with  the  advice  and  assent  of  his 
barons,  but  in  both  cases  his  veto  was  absolute  and  no  initia- 
tive belonged  to  the  barons  except  by  way  of  petition.  The 
new  representative  elements  which  had  been  united  to  form 
the  house  of  commons  appeared  nowhere  in  the  feudal  process 
of  legislation,  except  as  knights  may  occasionally  have  at- 


THE  HOUSE  OF  COMMONS  205 

tended  the  great  council  as  minor  barons,  probably  without 
influence  on  its  conclusions. 

Change  had  been  slowly  coming  on  in  the  thirteenth  cen- 
tury. A  more  definite  idea  of  law  had  been  growing  up. 
Before  the  middle  of  the  century  the  distinction  was  begin- 
ning to  be  felt  between  enacted  law  and  the  law  which  was 
custom  only.  The  word  "  statute  "  was  coming  into  use 
and  the  statute  itself  was  being  recognized  as  something  by 
which  the  courts  were  bound  whatever  the  custom  might 
be.  As  yet  the  distinction  between  the  old  method  of  legis- 
lation and  the  new,  between  statutes  and  ordinances,  could 
not  be  made,  though  both  words  were  in  use,  because  the 
new  method  had  not  yet  begun.  It  was  in  that  century, 
however,  that  the  rise  of  the  third  estate  to  a  new  position 
in  the  community  began  to  affect  the  process  of  legislation, 
as  we  have  seen  in  the  enactment  of  the  statute  De  rnerca- 
toribus.  The  model  parliament  of  1297,  though  so  far  as 
we  know  it  did  not  legislate,  may  be  taken  to  date  the  admis- 
sion of  the  new  elements  to  the  possibilities  and  rights  in 
legislation  of  the  old  great  council.  But  it  was  at  first  to 
no  more  possibilities  or  rights  than  the  great  council  had ; 
parliament  in  the  fourteenth  century  had  no  right  of  initia- 
tive except  by  way  of  petition,  and  the  king  and  the  great 
council,  or  the  king  and  his  small  council  even,  had  for  some 
time  an  equal  right  to  legislate. 

In  this  situation  we  have  the  elements  of  the  parliamen- 
tary struggle  of  the  fourteenth  century  over  legislation. 
We  have  also  the  fact  clearly  indicated  that  the  chief 
practical  difficulty  to  be  overcome  in  establishing  modern  leg- 
islative methods  was  not  to  get  the  right  of  the  house  of 
commons  to  start  the  process  of  legislation  by  petitions  rec- 
ognized. That  was  an  easy  matter.  The  difficulty  was  to 
establish  an  exclusive  right  for  the  new  legislation,  to  drive 
the  older  method  of  council  legislation  completely  out  of  the 
field  and  limit  all  law  making  to  parliamentary  petitions. 
This  was  the  purpose  which  the  house  of  commons  set  before 


206  THE  GROWTH  OF  PARLIAMENT 

itself  in  the  fourteenth  century,  perhaps  unconsciously,  per- 
haps because  it  seemed  to  be  the  only  way  to  accomplish  the 
practical  purpose  the}r  had  for  the  moment  in  view,  and  so 
great  was  the  task  to  prove  that  it  was  not  completely  ac- 
complished until  many  generations  later. 

A  part  of  the  difficulty  was  to  make  sure  that  the  statute, 
as  recorded  on  the  statute  roll,  conformed  to  the  petition  of 
the  commons.  The  practice  inherited  from  earlier  times 
was  that  the  formal  statute  to  be  entered  on  the  roll  was 
written  out  from  the  petition  and  usually  after  parliament 
had  dissolved.  This  gave  to  the  king  an  opportunity  to 
tamper  with  the  statutes  of  which  he  did  not  approve  with- 
out making  a  square  issue  at  the  moment  with  parliament. 
In  some  cases  nothing  was  done ;  the  petition  was  quietly 
passed  over.  In  134-1  Edward  III  refused  to  recognize  as  a 
statute  the  demands  of  parliament  to  which  he  had 
formally  consented  before  the  dissolution.  Sometimes  a  sav- 
ing clause  was  introduced  into  the  statute  changing  its  effect ; 
sometimes  it  was  left  without  provision  for  its  execution ; 
sometimes  additions  Avere  made  changing  its  application. 
The  abuses  from  these  unsettled  practices  were  more  extreme 
in  Richard  II's  reign  than  in  Edward  IIPs,  but  in  the  earlier 
period  a  consciousness  of  the  principles  involved  was  grow- 
ing. In  1344  and  1377  parliament  petitioned  against 
statutes  made  by  king  and  clergy  without  consulting  it.  In 
1340  parliament  itself  appointed  a  committee  to  convert  its 
petitions  into  statutes.  In  1348  it  insisted  that  the  answer 
given  in  parliament  should  not  afterwards  be  altered.  The 
statute  of  laborers  was  first  in- 1349  an  ordinance  and  after- 
wards a  statute.  The  same  was  true  of  the  statute  of  the 
staple  in  1353.  In  1363  parliament  was  asked  whether  it 
preferred  that  legislation-  on  a  given  subject  should  be  by 
ordinance  or  statute  and  it  chose  the  former  in  order  that 
amendment  might  be  easier,  showing  that  ordinances  were 
not  considered  of  so  permanent  a  character  as  statutes. 

Practically  in  the  fourteenth  century  the  right  of  the  com- 


"ORDER  IN  COUNCIL"  207 

mons  to  have  a  voice  in  the  making  of  every  statute  law  was 
indeed  conceded,  but  this  concession  did  not  entirely  solve 
the  problem.  King  after  king,  who  desired  a  little  more 
freedom  in  the  making  of  laws  than  parliamentary  restric- 
tions allowed,  found  a  suggestion  in  the  tradition  of  the 
powers  which  king  and  council  had  once  possessed,  and  tried 
to  galvanize  something  of  life  into  the  survivals  of  council 
legislation  in  ordinances  and  proclamations,  as  he  tried  to 
escape  complete  financial  dependence  by  inventing  new  forms 
of  revenue.  Even  today  the  "  order  in  council,"  which  is 
the  surviving  descendant  of  the  older  form  of  legislation, 
though  now  made  under  strict  parliamentary  supervision, 
has  a  wide  range  of  possibility.  We  easily  remember  the 
part  which  such  orders  have  played  in  affecting  relations 
between  England  and  the  United  States,  and  a  modern  Eng- 
lish scholar  has  said  of  his  country :  "  the  extent  to  which 
we  are  governed  at  present  by  orders  which  hardly  come 
within  the  direct  cognizance  of  the  legislature  is  much  wider 
than  most  people  are  aware  of." 

In  the  third  particular,  in  securing  control  of  the  policy 
which  should  be  followed  by  the  government,  parliament 
made  even  less  progress  during  the  fourteenth  century  than 
it  did  in  the  other  two  lines  of  advance.  We  h-ave  already 
noticed  briefly  how  by  taking  advantage  of  the  king's  finan- 
cial dependence  the  foundation  was  laid  of  the  modern  prac- 
tice of  appropriations,  and  by  a  development  of  the  practice 
such  a  control  might  have  been  reached,  but  no  more  than  a 
beginning  was  made  in  this  way.  The  old  method  of  the 
baronial  opposition  also  was  not  developed,  though  not  for- 
gotten, for  in  1341  a  demand  was  made  that  the  great  officers 
and  the  judges  should  be  appointed  in  parliament.  Not 
long  after  the  middle  of  the  century,  however,  another  pro- 
cess was  devised,  better  suited  to  medieval  conditions  and, 
when  put  into  use,  very  effective  in  checking  the  carrying  out 
of  an  anti-parliamentary  policy.  It  may  indeed  be  looked  at 
as  wider  in  its  range  than  the  mere  control  of  a  particular 


V 


208  THE  GROWTH  OF  PARLIAMENT 

governmental  policy  and  be  regarded  as  the  best  of  the  medi- 
eval attempts  to  find  institutional  expression  for  the  limited 
monarchy,  of  the  attempts  to  devise  institutional  forms 
through  which  the  king  could  be  controlled  without  the  dan- 
ger of  revolution  and  civil  war.  Considered  in  this  way,  it 
was  the  highest  and  most  successful  institutional  expression 
of  the  limited  monarchy  until  the  most  recent  times,  so  suc- 
cessful indeed  that  in  theory  it  still  forms  a  part  of  the 
Anglo-Saxon  constitution  —  the  process  of  impeachment,10 
first  used  in  imperfect  form  in  1376  against  ministers  of  Ed- 
ward and  in  1386  against  Richard's  minister,  the  carl  of 
Suffolk. 

As  a  process  it  is  not  necessary  to  describe  impeachment 
since  such  a  description  forms  a  familiar  part  of  the  con- 
stitution of  the  United  States  into  which  impeachment 
passed  from  the  English  constitution.  We  need  merely  say 
that  the  new  elements,  the  house  of  commons,  not  forming 
part  of  the  old  curia  regis  did  not  inherit  a  share  in  its  func- 
tion of  trying  cases  and  therefore  was  left  free  to  act  as  the 
accusing  body  in  the  new  process.  In  principle  the  process 
rests  on  the  doctrine  of  ministerial  responsibility  as  the  mid- 
dle ages  understood  it,  a  doctrine  which  came  to  be  expressed 
in  the  maxim  "  the  king  can  do  no  wrong."  This  political 
maxim  is  not,  as  it  seems  to  be  at  first  sight,  the  corner-stone 
of  an  absolute  monarchy.  It  is  rather  one  of  the  founda- 
tion stones  on  which  the  limited  monarchy  was  built.  For 
it  does  not  assert  that  no  wrong  will  be  done  by  the  govern- 
ment, nor  that  anything  that  may  be  done  by  the  govern- 
ment is  right.  What  it  says  is  that  when  wrong  is  done  by 
the  government,  it  was  not  the  king  who  did  it  but  his  min- 
ister. As  was  said  by  Sir  Dudley  Digges  in  opening  for  the 
house  of  commons  the  impeachment  of  the  duke  of  Bucking- 
ham in  1626,  one  of  the  first  steps  of  parliament  against  the 
royal  ideas  of  Charles  I :  "  The  laws  of  England  have 
taught  us  that  kings  cannot  command  ill  or  unlawful  things. 
io  A.   and   S.,   132-135;    148-150. 


THE  IMPEACHMENT  PROCESS  209 

And  whatsoever  ill  events  succeed,  the  executioners  of  such 
things  must  answer  for  them." 

In  this  interpretation  of  the  impeachment  process  may 
be  seen  both  the  part  which  it  played  in  the  development  of 
the  constitution  and  the  way  in  which  it  fell  into  line  with 
earlier  attempts  to  give  institutional  expression  to  the 
limited  monarchy.  If  the  king  were  personally  held  to  a 
direct  responsibility  for  his  acts,  there  would  always  be  great 
danger  of  civil  war.  For  it  is  not  often  in  history  that  a 
king  is  found  so  thoroughly  bad  that  no  party  is  left  that 
will  rally  to  his  defence.  But  a  minister  can  be  held  to  a 
strict  responsibility  with  far  less  danger.  And  yet  when  the 
ministers  of  the  king  have  been  taught  that,  if  they  insist 
upon  carrying  out  his  policy  in  opposition  to  the  will  of  par- 
liament, they  will  be  held  to  a  strict  accountability  for  their 
acts,  a  very  serious  obstacle  has  been  placed  in  the  way  of 
an  irresponsible  and  arbitrary  monarch. 

The  practice  of  impeachment  rested  clearly  upon  the  doc- 
trine of  ministerial  responsibility,  as  does  modern  cabinet 
government,  but  the  medieval  doctrine  was  so  different  from 
the  modern  in  idea  and  in  method  of  enforcement  that  the 
two  must  be  recognized  as  distinct  in  character  and  in  or- 
igin, as  will  be  shown  in  more  detail  later.  The  modern 
minister  is  not  responsible  to  parliament  in  form  at  all,  but 
to  the  king.  The  responsibility  which  he  is  actually  under 
is  indirect  and  disguised.  The  medieval  minister  was  respon- 
sible directly  and  immediately  to  parliament.  The  impeach- 
ment process  was  a  criminal  trial.  The  lower  house  of  par- 
liament, the  house  of  commons,  acting  as  an  accusing  body, 
drew  up  charges  against  the  minister  and  brought  him  to 
trial  upon  them  before  the  house  of  lords  acting  as  a  court 
of  law  in  continuation  of  the  judicial  function  of  the  old 
great  council.  The  trial  might  end  in  acquitting  the  min- 
ister or  the  upper  house  might  find  him  guilty  and  inflict  upon 
him  heavy  penalties  or  even  a  sentence  of  death.  It  was  a 
responsibility  terribly  direct  and  immediate*  as  if  parliament 


210  THE  GROWTH  OF  PARLIAMENT 

had  appointed  the  ministers  itself,  as  medieval  parliaments 
did  in  some  cases.  Its  purpose  and  effect  are,  however, 
equally  clear.  It  was  the  final  and  best  result  of  the  medie- 
val experimenting  to  devise  some  constitutional  form  which, 
like  the  board  of  twenty-five  barons  in  Magna  Carta  or  the 
commissions  created  by  the  Provisions  of  Oxford,  should  be 
able  to  hold  the  king  to  a  real  responsibility  while  avoiding 
as  far  as  possible  the  danger  of  civil  war  and  revolution.  It 
was  because  the  result  reached  by  the  middle  ages  in  this 
direction  was  so  good,  that  it  passed  into  the  modern  con- 
stitution, where  it  is  really  an  obsolete  survival. 

Impeachment  is  the  sign  and  striking  evidence  of  the 
growth  of  parliament  in  power  during  the  fourteenth  cen- 
tury, but  it  is  a  sign  of  far  more  than  appears  on  the  sur- 
face when  it  is  regarded  as  an  institution  merely.  It  should 
in  addition  be  considered  as  result,  and  as  result  it  not  merely 
brings  into  a  single  expression  the  advance  made  during  the 
century,  but  it  also  indicates  how  all  the  lines  of  progress  of 
the  century,  brought  to  a  focus,  became  the  vital  impulse  of 
a  new  progress  in  the  future. 

In  establishing  its  power  in  various  particulars  —  the 
financial  dependence  of  the  king,  the  legislative  dependence 
of  the  king,  the  dependence  of  the  king  at  least  partially  in 
matters  of  government  policy,  parliament  had  really  been 
doing  one  greater  thing.  It  had  been  enlarging  the  body 
of  law  which  the  king  was  bound  to  observe  as  that  had  been 
stated  in  Magna  Carta.  It  may  be  said  rather  that  it  had 
been  transforming  it.  Political  feudalism  no  longer  existed. 
The  services  to  the  state,  for  whose  performance  it  had  once 
been  necessar}',  were  now  better  got  in  other  ways.  Many 
of  the  rights  on  which  the  barons  had  once  insisted  in  Magna 
Carta  were  obsolete  and  forgotten.  The  baron  himself  was 
disappearing.  He  was  becoming  the  modern  noble  to  whom 
a  title  and  a  good  income  and  a  place  at  the  king's  court  were 
more  important  than  his  old  feudal  independence.  But 
the  fundamental  principle  of  Magna  Carta  was  neither  obso- 


NEW  FUNDAMENTAL  LAWS  211 

lete  nor  forgotten.  At  no  moment  in  all  the  progress  and 
transformations  of  the  past  had  it  been  lost  to  sight.  The 
king  was  bound  to  keep  the  laws  which  seemed  to  the  nation 
at  any  stage  of  its  advance  necessary  to  its  interest  and 
fundamental  statements  of  its  rights. 

In  more  specific  statement,  in  making  a  place  for  itself 
in  the  state  during  the  fourteenth  century  and  laying  the 
foundations  of  its  future  power,  parliament  had  bound  the 
king  almost  completely  in  taxation,  a  little  less  firmly  in  leg- 
islation, and  slightly  in  fact,  though  decidedly  in  possible 
developments,  in  the  control  of  government  policy.  These 
were  the  new  fundamental  laws  of  the  state  which  took  the 
place  of,  were  transformations  of,  the  principles  of  feudal- 
ism which  Magna  Carta  had  formulated.  They  were  the 
new  foundations  of  the  constitution  by  which  the  king  was 
limited,  in  addition  to  some  surviving  principles  of  the 
Great  Charter  which  occupied,  however,  a  less  conspicuous 
place  in  public  law,  like  those  relating  to  purveyance  and 
judicial  matters.  Inevitably  it  followed  that  parliament  by 
establishing  these  limitations  became  the  guardian  of  the 
constitution  which  rested  upon  them,  in  place  of  the  baronial 
opposition  which  through  the  whole  thirteenth  and  early 
part  of  the  fourteenth  centuries  had  performed  that  func- 
tion. This  change  was  of  immense  importance  in  the  forma- 
tion of  the  limited  monarchy.  Leadership  passed  from  the 
unorganized,  short-sighted  and  self-centered  opposition  of 
the  barons,  so  often  personal  in  character  and  to  which  a 
continuity  of  purpose  was  scarcely  possible,  nor  even  the 
(intelligent  accumulation  of  precedent.  The  directing  of 
the  advance  passed  over  to  an  institution  whose  activity  was 
never  suspended,  which  allowed  nothing  that  had  been 
gained  to  be  forgotten  and  which  was  capable  of  continuous 
growth  and  adaptation.  The  process  of  impeachment  as 
resting  upon  the  principle  that  the  agents  of  the  king's 
policy  were  responsible  directly  to  parliament,  and  that 
therefore  the  king  was  under  parliamentary  control,  is  the 


212  THE  GROWTH  OF  PARLIAMENT 

institutional  expression  of  the  fact  that  the  guardianship  of 
the  constitution  was  in  the  hands  of  parliament.  Putting 
all  these  things  together  we  maj'  say,  that  the  large  outlines 
of  the  constitution  had  now  been  fixed,  to  be  filled  in  more 
iuUy  in  later  times,  and  from  now  on  the  formation  of  the 
limited  monarchy  went  on,  not  without  reaction,  but  con- 
sistently and  without  permanent  loss. 

In  describing  this  change,  I  have  not  intended  to  imply 
that  parliament  was  conscious  that  it  had  taken  this  place 
or  that  it  understood  the  larger  significance  of  its  own  posi- 
tion. The  events  of  the  next  generation,  however,  were  of 
a  sort  almost  to  give  us  the  right  to  say  that  the  king  for  his 
part  was  conscious  of  the  situation,  and  what  it  implied  for 
the  future  of  the  royal  power,  and  the  results  of  what  he 
attempted  to  do  in  consequence  certainly  advanced  parlia- 
mentary understanding.  The  reign  of  Richard  II  began 
with  a  minority  during  which  the  practical  supremacy  of 
parliament  was  evident  and  the  precedents  of  Edward  Ill's 
reign  were  confirmed.  Even  the  council,  the  special  organ 
of  the  king's  activity,  was  almost  a  creature  of  the  parlia- 
ment. 

The  last  quarter  of  the  fourteenth  century  was  an  age  of 
revolutionary  tendencies  in  several  directions.  A  great  eco- 
nomic change  was  taking  place,  affecting  decidedly  the  posi- 
tion of  the  agricultural  laborer,  partly  as  a  result  of  the 
Black  Death,  and  leading  to  the  peasant  insurrection  of 
1381  and  to  the  more  rapid  extinction  of  villenage.  Wy- 
cliffe  and  his  followers  were  teaching  doctrines  revolutionary 
in  religion  and  theology  with  possible  political  applications 
(Squally  revolutionary.  Revolution  in  the  field  of  govern- 
ment was  favored  by  the  almost  too  rapid  advance  of  parlia- 
ment's power,  by  the  prevalence  of  faction,  and  later  by  the 
character  of  the  king.  Factional  strife  was  an  inheritance 
from  the  bad  days  at  the  end  of  Edward's  reign,  but  it  was 
encouraged  by  the  circumstances  in  which  the  first  strict  ap- 
plication of  the  principle  of  primogeniture  had  been  made 


SUPREMACY  OF  PARLIAMENT  213 

to  the  succession  to  the  Crown.  Richard  as  a  minor  had 
succeeded  his  grandfather  while  his  uncles  were  men  of  ma- 
ture age,  of  wealth  and  influence  and  not  lacking  in  ambi- 
tion. If  we  were  sure  of  the  interpretation  which  we  ought 
to  put  upon  the  policy  of  the  king,  the  reign  of  Richard  II 
might  easily  seem  to  us  the  most  interesting  and  instructive 
period  of  the  medieval  history  of  the  constitution.  As  it  is 
it  sums  up  the  progress  which  parliament  had  made  and 
reveals  a  constitutional  monarchy  already  in  existence,  not 
as  yet  in  the  details  of  government  but  in  broad  outline. 

Parliament  took  full  advantage  of  the  minority  of  the  king 
to  follow  the  precedents  which  it  had  inherited  both  from 
the  baronial  opposition,  precedents  of  control  of  the  coun- 
cil and  official  appointments,  and  from  parliament's  gains 
under  Edward  III,  precedents  of  control  of  taxation  and 
expenditure  lx  and  the  use  of  grants  to  compel  concessions 
and  also  of  its  sole  right  to  legislate.  When  Richard  came 
of  age,  he  showed  himself  of  violent  temper,  disposed  to  ex- 
travagance and  to  selfish  disregard  of  public  interests  and 
impatient  of  restraint  or  criticism.  During  the  stormy  peri- 
ods of  the  reign,  there  was  a  combination  together  against 
the  king  of  the  traditional  baronial  and  of  the  new  parlia- 
mentary opposition.  Emphatic  acknowledgment  of  the 
power  of  parliament  was  more  than  once  made,  however,  be- 
ginning before  the  death  of  Edward  III,  by  the  careful  pack- 
ing of  the  house  of  commons  with  the  adherents  of  one  fac- 
tion or  the  other,  accomplished  through  the  control  of  the 
sheriffs  who  were  the  returning  officers. 

During  the  time  of  extreme  opposition,  near  the  end  of 
his  minority,  Richard  was  expressly  threatened  with  the  fate 
of  Edward  II,12  and  was  twice  forced  to  yield  completely  to 
parliament  or  to  the  "  lords  appellant."  Finally  by  a  coup 
d'etat  of  his  own,  he  overthrew  the  latter  and  brought  his 
minority  to  an  end.     Then  followed  a  period  of  nearly  eight 

11  A.   and  S.,  136-140. 

12  A.  and  S.,  150. 


214  THE  GROWTH  OF  PARLIAMENT 

years  of  almost  constitutional  government.  The  character 
of  the  king  seemed  to  have  changed,  hut  many  have  thought 
that  he  was  merely  waiting  his  opportunity  of  revenge.  A 
king  who  knew  anything  at  all  of  the  meaning  of  monarchy 
could  hardly  fail  to  appreciate  the  position  in  which  Richard 
had  found  himself  as  a  result  of  the  growth  of  the  constitu- 
tion. We  cannot  say  from  any  direct  evidence  that  Richard 
had  learned  this  lesson  and  that  he  determined  to  reestablish 
the  personal  and  unlimited  government  of  the  Crown  which 
his  ancestors  had  possessed.  We  can  say,  however,  that 
what  he  did  in  the  last  years  of  his  reign  is  what  he  would 
have  been  likely  to  do,  if  he  had  understood  his  position  and 
with  great  skill  formed  such  a  plan.  His  acts  seem  con- 
sciously and  definitely  shaped  to  carry  out  such  a  purpose. 

It  is  significant  of  the  power  of  parliament  and  of  Rich- 
ard's perception  of  it  that  he  felt  obliged  to  use  it  to  carry 
out  the  first  items  of  his  programme  and  to  get  the  founda- 
tion laid  for  his  absolutism.  He  both  packed  it  with  men 
whom  he  could  trust  after  earlier  fashion,  and  overawed 
it  with  troops  of  Welsh  archers  in  his  pay.  His  first  step 
was  to  establish  the  principle  that  members  of  parliament 
could  be  held  to  a  direct  responsibility  to  himself  for  their 
words  and  acts  in  parliament  and  severely  punished  under  an 
accusation  of  treason,  by  securing,  in  1397,  a  sentence  of 
death  upon  Haxey,  a  member  of  the  house  of  commons,  for 
introducing  a  bill  to  which  he  was  bitterly  opposed.  The 
sentence  was  not  executed,  but  the  principle,  put  into  opera- 
tion, would  destroy  all  possibility  of  opposing  the  king 
through  parliament.  He  then  obtained  from  a  parliament 
which  would  refuse  nothing  a  grant  of  the  revenue  from 
wool  for  his  life  and  the  appointment  of  a  committee,  con- 
trolled by  himself,  in  which  the  powers  of  parliament  were 
vested.13  In  the  form  given  it,  this  was  only  a  beginning, 
but  it  was  one  that  could  have  been  developed  in  time  into 
complete  legislative  independence.     He  added  unauthorized, 

"A.  and   S.,  159-160. 


A  DANGEROUS  CRISIS  215 

arbitrary  taxation,  and  he  took  an  even  more  extreme  step 
without  parliamentar}'  sanction  and  assumed  the  right  to 
nullify  acts  of  parliament  by  falsifying  the  records  or  by 
the  suspension  of  a  statute  by  prerogative  action. 

If  these  different  successes  of  the  king  be  considered 
together,  it  is  hard  to  avoid  the  conclusion  that  he  was  act- 
ing upon  a  definite  plan  and  it  is  easy  to  see  how  little  of 
the  constitution  would  be  left,  if  they  were  made  permanent. 
They  would  constitute  the  foundation  stones  of  an  abso- 
lutism as  complete  as  that  which  Richelieu  afterwards  per- 
fected upon  the  same  foundations,  just  then  beginning  to  be 
laid  by  Charles  the  Wise  on  the  other  side  of  the  Channel. 
The  last  three  years  of  Richard's  reign  form  the  first  dan- 
gerous crisis  through  which  the  English  constitution  passed 
because  of  the  skilful  and  systematic  attempt  of  the  sovereign 
to  turn  back  the  tide  of  advance.  Happily  his  attack  on 
the  fundamental  laws  of  the  state  was  accompanied  with  acts 
of  personal  tyranny  which  furnished  the  opposition  with 
a  leader.  Under  Henry  of  Bolingbroke  the  nation  rose 
against  the  king  and  it  was  speedily  discovered  that  Rich- 
ard's conduct  had  left  him  for  the  moment  almost  without 
supporters.  The  revolution  of  1399  was  practically  blood- 
less. 

Bibliographical  Note. —  J.  C.  Davies,  The  Baronial  Opposi- 
tion to  Edward  II,  1918.  N.  S.  B.  Gras,  The  Early  English 
Customs  System,  1918.  L.  W.  Vernon  Harcourt,  His  Grace 
the  Steward  and  Trial  of  Peers,  1907.  G.  Lapsley,  The  Com- 
mons and  the  Statute  of  York,  E.  H.  R.,  xxviii,  121,  1913;  Knights 
of  the  Shire  in  the  Parliaments  of  Edward  II,  E.  H.  R.,  xxxiv,  25 ; 
152,  1919.  C.  H.  Mcllwain,  The  High  Court  of  Parliament, 
1910.  L.  O.  Pike.  The  Constitutional  History  of  the  House  of 
Lords,  1894.  A.  F.  Pollard,  The  Evolution  of  Parliament,  1920. 
T.  F.  Tout,  The  Place  of  Edward  II  in  English  History,  1914; 
The  Administrative  History  of  Mediceval  England,  2  vols., 
1920. 


CHAPTER  IX 

PREMATURE  CONSTITUTIONAL  GOVERNMENT 

Henry  of  Bolingbrcrke,  in  leading  the  revolution  which 
overthrew  Richard  II,  probably  had  little  personal  interest 
in  the  constitutional  aspect  of  the  crisis.  His  was  naturally 
a  personal  interest  to  secure  the  Lancastrian  inheritance, 
which  the  king  had  seized,  and  the  ambitious  prospect  which 
the  opportunity  offered.  But  he  was  interested  to  make 
full  use  of  the  advantage  which  the  opposition  to  Richard's 
tyranny  had  created  and  without  it  he  could  not  have  suc- 
ceeded. That  opposition,  though  very  likely  to  a  great 
extent  a  factional  baronial  opposition,  little  more  far- 
sighted  than  the  opposition  which  at  various  times  in  the 
thirteenth  century  had  wrested  concessions  from  the  king, 
gives,  as  in  the  earlier  cases,  a  clearly  constitutional  char- 
acter to  the  revolution  of  1399.  In  forming  an  estimate  of 
the  revolution,  we  must  also  take  into  the  account  the  prog- 
ress made  by  the  house  of  commons  under  Edward  III  for, 
though  the  commons  do  not  play  a  leading  role  in  the  over- 
throw of  Richard,  the  total  absence  of  any  support  for  the 
king  is  significant.  As  an  objective  historical  fact,  as  truly 
as  in  the  later  revolution  of  1G&8,  the  action  of  the  nation 
saved  the  constitution  from-  the  destruction  threatened  by 
the  p'olicy  of  the  king.  It  cannot  be  asserted  that  in  1399 
the  nation  understood  either  the  constitution  or  the  danger 
as  clearly  as  in  1688,  but  it  is  asserted  that  both  existed  as 
truly  in  the  earlier  as  in  the  later  case  and  tli-at  both  were  at 
the  time  to  some  extent  consciously  perceived.  As  to  the 
constitution,  all  the  main  lines  of  it  as  it  exists  today  had 

been  laid  down  in  principle  by  1399.     Hardly  anything  had 

216 


CHARACTER  OF  REVOLUTION      217 

yet  been  done  in  applying  its  principles  to  the  details  of  gov- 
ernment. The  fifteenth  century  was  to  be  the  first  age  in  the 
process  of  making  such  application ;  but  the  principles  ex- 
isted. Many  facts  make  it  evident  to  us  that  what  we  may 
possibly  begin  to  call  the  public  opinion  of  the  nation  was 
coming  to  understand  something  of  the  character  of  con- 
stitutional law  and  of  the  importance  of  doing  things  even  in 
a  revolutionary  time  as  nearly  as  could  be  according  to 
precedent  and  established  forms,  that  it  was  beginning  to 
appreciate  the  position  which  parliament  had  secured  in 
the  conduct  of  government,  the  position  to  which  the  king 
had  been  reduced  and  the  practical  difference  which  would 
be  made  if  the  king  should  succeed  in  throwing  off  the  restric- 
tions which  had  been  put  upon  him.  If,  however,  one  con- 
siders not  how  complete  the  national  understanding  was  in 
1399,  but  the  historically  more  important  question  what  was 
really  at  stake  in  that  crisis,  as  we  can  see  it  from  our 
knowledge  of  the  later  history,  the  accuracy  of  the  parallel 
with  1688  is  clearly  established.  It  was  also  undoubtedly 
its  constitutional  character  which  gave  the  revolution  its 
speedy  success. 

It  was  in  this  respect  also  complete.  The  house  of  Lan- 
caster came  to  the  throne  dependent  upon  the  support  of  the 
nation  for  the  possession  of  a  crown  won  by  revolution,  logi- 
cally pledged  to  recognize  the  rights  which  parliament  had 
secured  during  the  fourteenth  century  and  to  allow  the  full 
exercise  of  the  powers  which  Richard  had  attacked.  The 
new  king  was  pledged  also  to  the  same  policy  by  the  force  of 
circumstances,  for  Henry  IV,  the  product  of  the  revolution, 
himself  in  constant  danger  of  counter  revolutions,  was  too 
dependent  upon  such  support  as  he  could  win  to  adopt  a 
policy  of  aggression  in  any  direction,  or  to  antagonize  so 
strong  an  institution  as  parliament  had  become.  His  reign 
seems  a  very  mediocre  one,  despite  Henry's  undoubted 
abilities,  because  he  found  himself  obliged  in  everything  to 
take  a  moderate  and  middle  course.     His  son  and  successor, 


218  PREMATURE  CONSTITUTION 

Henry  V,  the  Prince  Hal  of  Shakespeare,  felt  himself  strong 
enough  to  reneAv  the  war  with  France  and  made  himself  a 
great  name  by  the  victories  he  won,  but  his  long  campaigns 
kept  him  away  from  England  and  left  the  government  there 
necessarily  in  other  hands.  His  premature  death  brought 
his  son,  Henry  VI,  to  the  throne  while  a  babe  in  arms,  and  a 
long  minority  and,  after  he  came  of  age,  the  king's  mental 
and  physical  weakness,  tended  still  to  maintain  parliament's 
general  control. 

For  this  long  period  of  sixty  years  parliament's  authority 
was  unquestioned,  nor  did  the  Lancastrian  kings  show  at 
any  time  a  disposition  to  question  it.  Their  natural  incli- 
nation seemed  to  be,  so  far  as  we  can  judge  it,  to  rule  in 
harmony  with  parliament.  It  was  a  period  of  unbroken  con- 
stitutional government.  Startlingly  and  prematurely  mod- 
ern, I  have  called  it  in  another  place,  and  though  the  machin- 
ery of  constitutional  government  had  as  yet  been  worked  out 
in  few  details,  it  was  in  spirit  modern.  Parliament  seemed 
aware  of  the  security  of  its  position  and  busied  itself  on 
one  hand  with  perfecting  details  and  on  the  other  with 
strengthening  its  control.  It  used  the  king's  council  as  its 
own  instrument,  and,  most  remarkable  of  all,  we  seem  to  be 
able  to  detect  the  faint  beginnings,  amid  somewhat  similar 
conditions,  of  that  change  in  the  relations  between  council 
and  parliament  out  of  which,  in  more  modern  times,  the  Eng- 
lish cabinet  system  grew.  But  ev^fl-j^arliamentary  control 
V  of  the  council,  through  which  the  daily  government  of  the 
»  country  was  carried  on,  could  not  prevent  the  rise  of  those 
/  factious^ rivalries  among  the  great  men  of  the  day  which  led 
in  another  generation  directly  into  the  civil  wars  of  the 
Roses. 

It  was  indeed  a  period  prematurely  modern.  It  was  con- 
stitutional not  because  the  constitution  was  solidly  founded 
and  firmly  fixed  and  fortified  in  possession  of  the  govern- 
ment, not  because  the  constitutional  way  seemed  the  only 
natural  way  of  doing  things,  but  rather  because  of  circum- 


THE  KING'S  PLACE  IN  GOVERNMENT      219 

stances  somewhat  temporary  in  character:  the  insecurity  of 
the  king,  his  absence,  his  infancy,  or  his  personal  weakness, 
left  parliament  really  alone  the  strongest  factor  in  the  gov- 
ernment. It  was  the  best  result  of  such  a  period  that  con- 
stitutional government  grew  to  seem  more  normal.  The 
habits  of  thought  and  action  then  formed  were  more  impor- 
tant than  the  precedents  established,  and  one  great  reason 
why  the  constitution  survived  the  next  age  was  that  in  this 
one  it  had  become  more  firmly  a  part  of  the  national  life. 

What  conclusion  the  best  thought  of  the  time  had  reached 
about  the  place  of  the  king  in  the  government  may  be  indi- 
cated in  the  words  of  a  contemporary  student  of  the  Eng- 
lish constitution,  which  are  "  so  explicit  and  weighty  that  no 
writer  on  the  English  constitution  can  be  excused  from  in- 
serting "  them,  as  Hallam  says,  in  the  third  part  of  his  chap- 
ter on  the  English  constitution  in  his  Europe  during  the 
Middle  Ages.  Sir  John  Fortescue,  who  had  been  chief  jus- 
tice of  England,  had  had  his  training  and  almost  all  his 
active  life  in  the  Lancastrian  age.  In  his  book  In  Praise 
of  tlie  Laws  of  England,  written  early  in  the  reign  of  Ed- 
ward IV,  he  said  of  the  king:  "  He  can  neither  make  any 
alteration  or  change  in  the  laws  of  the  realm  without  the 
consent  of  his  subjects,  nor  burden  them  against  their  wills 
with  strange  impositions."  And  again :  "  As  the  head  of 
the  body  natural  cannot  change  its  nerves  and  sinews,  can- 
not deny  to  the  several  parts  their  proper  energy,  their  due 
proportion  and  aliment  of  blood,  neither  can  a  king  who  is 
the  head  of  the  body  politic,  change  the  laws  thereof,  nor 
take  away  from  the  people  what  is  theirs  by  right,  against 
their  consent.  Thus  you  have  the  formal  institution  of 
every  political  kingdom,  from  whence  you  may  guess  at  the 
power  which  a  king  may  exercise  with  respect  to  the  laws 
and  the  subject.  For  he  is  appointed  to  protect  his  subjects 
in  their  lives,  properties  and  laws ;  for  this  very  end  and 
purpose  he  has  the  delegation  of  power  from  the  people  and 
he  has  no  just  claim  to  any  other  power  but  this."     These 


220  PREMATURE  CONSTITUTION 

ma}'  be  the  words  of  a  philosophical  student  of  government, 
but  there  can  be  no  doubt  that  in  essence  Fortescue  was  right. 
At  that  date  the  principle  had  been  in  reality  established 
that  the  royal  power  was  a  delegation  from  the  people,  al- 
though it  was  to  be  two  hundred  years  longer  before  that 
principle  could  be  fully  carried  out  in  the  practical  govern- 
ment of  the  country. 

One  new  parliamentary  right  which  the  revolution  of 
1399  went  a  long  way  towards  establishing  should  not  be 
passed  over  —  the  right  of  determining  the  succession  to  the 
crown.  By  this  is  not  meant  the  larger  and  more  important 
right  of  deposing  a  king  who  could  not  otherwise  be  con- 
trolled. The  right  of  deposition  had  been  made  in  a  sense 
constitutional  by  Magna  Carta,  as  the  foundation  upon 
which  rested  the  smaller  and  included  right  of  temporary  sus- 
pension asserted  in  chapter  61.  That  right  of  temporary 
suspension  for  bad  conduct  had  been  exercised  by  the  great 
council  in  1258  and  again  in  1310,  and  the  more  complete 
right  of  deposition  had  been  exercised  against  Edward  II  in 
1328.  But  more  than  this  was  done  in  1399.  Parliament 
assumed  the  right  to  pass  over  the  line  marked  out  for  suc- 
cession by  the  principle  of  primogeniture,  lately  established 
in  English  law,  the  principle  of  strict  hereditary  succession 
by  blood,  and  to  place  upon  the  throne  the  younger  line,  the 
house  of  Lancaster. 

Henry  IV  was  the  son  of  John  of  Gaunt,  Duke  of 
Lancaster,  the  third  son  of  Edward  III.  The  elder 
line  was  represented  at  his  accession  by  Edmund  Mor- 
timer, Earl  of  March,  grandson  through  his  mother  of 
Edward's  second  son,  a  child  of  eight  years  of  age.  Late 
in  the  reign  of  Henry  V,  this  title  to  the  throne  passed  to 
the  house  of  York  through  a  sister  of  the  earl  of  March. 
There  is  plenty  of  evidence  to  show  that  the  men  of  the 
time  were  quite  aware  that  in  making  Henry  king  they  were 
passing  over  the  direct  line  according  to  the  principles  of 
succession  by  that  time  established  in  English  law.     There  is 


SUCCESSION  REGULATED  221 

less  evidence  to  show  that  they  understood  the  enlargement 
or  new  application  of  the  powers  of  parliament  which  they 
were  making  in  the  act.  They  were  in  reality  giving  the 
throne  to  the  house  of  Lancaster  by  what  came  to  be  later 
called  a  parliamentary  title  and  to  be  regarded  in  constitu- 
tional law  as  the  best  of  all  titles. 

Whether  there  was  in  the  mind  of  any  one  at  the  time  anti- 
quarian justification  for  this  action  of  parliament  in  a  rem- 
iniscence of  the  acts  of  the  Saxon  national  assembly  in  regu- 
lating the  succession  among  the  members  of  the  royal  family, 
or  of  the  great  council  in  passing  over  Arthur  in  favor  of 
John  two  hundred  years  before,  is  really  not  of  importance. 
There  is  no  historical  line  of  connection  between  the  earlier 
and  the  later  facts ;  there  had  been  no  continuity  of  prac- 
tice, no  inheritance  of  constitutional  law.  The  action  of 
1399  was,  as  a  part  of  the  constitution  that  was  taking 
shape,  new  and  formative. 

Logically  this  right  was  of  course  involved  in  the  older 
right  of  deposition,  but  its  exercise  in  the  new  form  was 
destined  in  the  immediately  following  centuries  to  attract 
to  itself  more  general  interest  and  to  be  more  useful  to 
parliament  than  the  greater  right  from  which  it  was  derived. 
Indeed  as  early  as  1460  it  led  to  a  most  significant  declara- 
tion of  the  power  of  parliament  clearly  anticipating  the 
future.  When  the  duke  of  York  after  a  decisive  victory 
over  the  Lancastrians  in  the  field  unexpectedly  called  upon 
a  Yorkist  parliament  to  recognize  his  better  right  to  the 
crown,  as  standing  for  the  elder  line,  the  house  of  lords  gave 
as  one  of  its  reasons  for  refusing  his  demand  the  fact  that 
the  entailing  of  the  crown  upon  the  house  of  Lancaster  by 
act  of  parliament  created  a  better  title  to  the  throne  than 
any  other  could  be. 

The  fifteenth  century  stands  in  sharp  contrast  to  the 
fourteenth,  not  in  the  exercise  of  parliamentary  power  but 
in  its  increase.  The  great  creative  advances  possible  to  the 
political  foresight  of  the  middle  ages  had  been  made.     There 


222  PREMATURE  CONSTITUTION 

was  no  experience  of  constitutional  government  in  the  past 
to  which  the  leaders  of  the  fifteenth  century  could  turn  for 
guidance.  They  could  have  no  ideal  of  a  perfected  limited 
monarchy,  institutionally  complete  in  all  its  parts,  which 
they  could  strive  to  reach  as  a  final  result,  nor  any  clear 
conception  of  the  future  dangers  to  their  work  from  which 
they  ought  to  guard  it.  In  all  the  stages  of  this  historically 
new  work  of  creating  government  by  the  people,  it  was  the 
practical  need  of  the  moment  which  determined  what  was 
done,  not  any  theoretical  conception  of  the  end  to  be  reached. 
The  fifteenth  century  was  satisfied  with  the  results  which  had 
been  gained,  and  felt  no  immediate  need  of  farther  advance. 
Since  this  work  was  new  to  all  experience,  it  was  fortunate 
also  that  there  came  after  the  rapid  progress  of  the  four- 
teenth century  a  period  of  three  generations,  as  medieval 
generations  must  be  reckoned1,  of  comparative  quiet,  com- 
paratively stationary.  The  operation  of  constitutional  gov- 
ernment, the  supremacy  of  parliament,  the  doing  of  all  sorts 
of  things  by  parliamentary  action,  became  to  a  degree 
in  so  long  a  period  things  of  habit,  and  this  habit  of 
parliamentary  authority,  as  has  been  said,  formed  a  solid 
substratum  of  constitutional  right  underlying  all  the  super- 
ficial reaction  of  the  next  century. 

And  so  parliament  from  1399  to  1460,  carrying  on  the  gov- 
ernment as  a  matter  of  course,  concerned  itself  in  strength- 
ening its  position  not  in  large  things  but  in  small  ones. 
It  was  busy  about  the  establishment  of  the  so-called  privi- 
leges of  parliament :  freedom  of  debate,  which  perhaps  can 
hardly  be  called  a  small  thing;  the  freedom  of  members  from 
arrest ;  the  right  of  the  house  of  commons  as  distinguished 
from  the  upper  house  to  originate  taxation,  to  determine  the 
qualifications  of  members,  and  to  discipline  and  punish  mem- 
bers and  disrespectful  outsiders ;  the  regulation  of  the  right 
of  suffrage  in  the  counties ;  the  extension  of  the  practice  of 
appropriations ;  and  the  improvement  of  the  process  of  leg- 
islation. 


FREEDOM  OF  DEBATE  223 

The  question  of  freedom  of  debate  was  an  inheritance  from 
the  despotism  of  Richard.  The  case  of  Haxey  had  revealed 
the  necessity  of  guarding  against  the  interference  of  the 
king,  if  parliament  was  to  exercise  any  check  upon  arbi- 
trary government,  and  shown  also  the  dangerous  weapon  at 
the  command  of  the  king  in  a  charge  of  treason.  It  was  nat- 
ural that  a  right  so  fundamental  to  the  power  of  parlia- 
ment should  be  one  of  the  earliest  attacked  in  the  first  at- 
tempt of  the  executive  to  overthrow  the  constitution  and 
that  its  real  character  as  the  parliamentary  privilege  "  with- 
out which  all  other  privileges  would  be  valueless  "  should 
not  be  fully  understood  until  called  in  question  by  such  a 
crisis.  Haxey  had  been  released  before  the  fall  of  Richard, 
probably  because  he  was  in  holy  orders,  but  in  the  first  year 
of  Henry  IV  he  petitioned  that  the  judgment  against  him 
be  reversed  and  this  was  done  by  the  house  of  lords,  and  the 
reversal  was  repeated  the  same  year  on  the  petition  of  the 
commons,1  together  equivalent  to  action  by  the  whole  par- 
liament. The  next  year  the  speaker  of  the  commons  de- 
clared to  the  king  that  certain  members  of  the  house  were 
accustomed  to  report  to  him,  the  king,  on  matters  before 
them  "  before  the  same  had  been  discussed  and  agreed  upon 
among  the  said  commons  by  which  the  king  might  be  in- 
censed against  them  or  some  of  them  "  and  asked  him  not 
to  take  notice  of  such  reports,  and  this  the  king  promised 
not  to  do.2  In  1407  a  more  formal  declaration  was  made 
by  the  king  "  that  it  shall  be  lawful  for  the  Lords  to  com- 
mune among  themselves  in  this  present  Parliament  and  in 
every  other  in  time  to  come,  in  the  absence  of  the  king, 
of  the  state  of  the  realm  and  of  the  remedy  necessary  for 
the  same.  And  that  in  like  manner  it  shall  be  lawful  for 
the  commons  on  their  part  to  commune  together  of  the  state 
and  remedy  aforesaid."  3     These  declarations  established  the 

i  A.  and  S.,  167. 

2  A.  and  S.,  No.  108,  p.  172.     Cf.  Nos.  107,  109. 

8  A.   and  S.,  175-177. 


224  PREMATURE  CONSTITUTION 


theoretical  principle,  as  the  basis  of  the  privilege,  that  the 
king  does  not  know  what  is  said  in  debate,  and  they  remained 
the  constitutional  form  of  the  principle  until  the  case  of 
Strode  in  1512.  Strode  had  been  tried  and  punished  by  a 
local  court  because  of  measures  he  had  introduced  into  par- 
liament relating  to  the  tin  miners  of  Cornwall.  Parliament 
thereupon  passed  a  statute  declaring  his  condemnation  void 
and  forbidding  all  such  action  in  the  future  against  mem- 
bers of  the  house  of  commons.4  This  meant  freedom  from 
interference  by  outside  authorities  rather  than  the  principle 
of  freedom  of  debate,  but  this  latter,  though  it  may  have 
been  admitted  by  the  king,  was  not  certain  to  be  always  re- 
spected, because  in  times  of  tendency  towards  a  strong  and 
arbitrary  government  it  would  be  almost  necessarily  limited 
in  some  form. 

Of  far  less  importance  except  in  the  earliest  times  and  of 
scarcely  any  importance  today,  is  the  privilege  of  members 
of  parliament  to  freedom  from  arrest  during  a  session  and  in 
going  to  and  returning  from  one.5  The  privilege  had  ex- 
isted from  the  da}7s  of  the  Saxon  assembly,  which  had  pos- 
sessed it  in  common  with  other  Teutonic  assemblies,  but  it 
was  formally  recognized  by  Henry  IV  in  1403  and  regulated 
and  extended  by  statute  under  Henry  VI.  Of  some  public 
value  in  times  when  arrest  upon  civil  process  was  frequent, 
it  was  never  extended  to  arrest  upon  criminal  charges  and 
it  was  always  most  difficult  to  protect  against  the  infringe- 
ment of  the  sovereign  in  times  when  it  was  most  needed. 

During  the  fourteenth  century  the  older  practice  of  the 
separate  taxation  of  each  estate  by  its  own  representatives 
was  gradually  abandoned,  except  for  the  clergy,  and  a 
grant  of  money  approached  more  nearly  the  character  of 
a*n  act  of  parliament.  So  far  as  we  know,  this  change  was 
first  expressed  in  the  form  of  the  grant  of  1395.  The  grant 
of  tli at  year  was  said  to  be  made  "  by  the  Commons  with 

«.A.  and  S.,  224. 

6  A.  and  S.,  191-193,  196-197. 


MEMBERSHIP  QUALIFICATIONS  225 

the  advice  and  assent  of  the  Lords,"  a  form  of  words  which 
seems  intentionally  to  emphasize  the  originating  function 
of  the  commons.  This  was  emphasized  again  by  Henry  IV 
in  the  declaration  of  14-07  already  quoted.  He  agreed  that 
no  report  should  be  made  to  the  king  "  of  any  grant  by  the 
Commons  granted  and  by  the  Lords  assented  to  .  .  .  before 
the  Lords  and  Commons  shall  be  of  one  assent  .  .  .  and 
then  in  the  form  and  manner  accustomed,  that  is  to  say,  by 
the  mouth  of  the  Speaker  of  the  Commons."  6  These  cita- 
tions indicate,  not  the  formulation  of  a  constitutional  right 
in  legal  form  but  the  growth  of  a  custom,  and  the  right  of 
the  commons  remained  a  customary  one  until  into  the  sev- 
enteenth century,  though  it  must  be  noted  that,  so  long  as  the 
old  great  council  continued  to  be  occasionally  summoned 
to  meet  by  itself,  it  remained  possible  for  it  to  grant  a  tax 
to  be  paid  by  the  second  estate  only.  It  should  be  noted 
also  that  the  conscious  meaning  and  binding  force  of  these 
precedents  at  the  time  may  easily  be  exaggerated,  and  un- 
doubtedly the  seventeenth  century  did  exaggerate  them  in 
its  struggle  with  the  Stuarts.  As  the  beginning  of  a  tend- 
ency, however,  they  gave  legitimate  foundation  for  the 
conclusion  which  was  later  based  upon  them,  even  if  that  was 
more  nearly  a  logical  deduction  than  a  historical  fact. 
Looked  at  in  another  way,  moreover,  as  demands  of  the  house 
of  commons,  they  reveal  a  consciousness  of  position  and 
power  which  shows  the  progress  which  had  been  made  in  the 
fourteenth  century. 

It  was  with  reference  to  the  representatives  of  the  coun- 
ties that  parliament  first  began  to  lay  down  qualifications 
for  membership  in  the  house  of  commons.  Little  concern 
was  shown  during  the  middle  ages  for  the  qualifications  or 
the  manner  of  election  of  the  burgesses.  But  the  county 
members  were  "  knights  of  the  shire."  As  feudal  distinc- 
tions had  declined  when  parliament  began  and  membership 
in  the  commons  had  not  yet  become  in  itself  attractive,  the 

«A.  and  S.,  175-177. 


226  PREMATURE  CONSTITUTION 

first  precedents  of  parliamentary  control  of  qualifications 
were  made  in  trying  to  maintain  the  requirement  of  a  rank 
for  the  representatives  of  the  counties  above  that  of  the 
common  freeman.  In  the  fourteenth  century  the  king  had 
found  this  difficult  to  do  and  in  1445  the  attempt  was  made 
to  do  it  by  parliamentary  statute,7  requiring  those  elected 
to  be  gentlemen  born.  This  legislation  scarcely  produced 
immediate  effect,  though  the  increasing  power  of  parliament 
gradually  brought  about  the  desired  result  by  making  mem- 
bership more  attractive.  An  enactment  of  1413,  repeated  in 
1430  and  1445,  required  that  members  should  reside  in  the 
locality  they  represented,  but  probably  this  act  was  intended 
less  to  define  the  qualifications  of  members  than  to  check  the 
practice  of  the  sheriffs,  as  returning  officers,  of  packing  the 
commons  with  their  own  nominees.8 

The  first  statute  determining  who  should  be  electors  in 
the  counties  belongs  also  to  this  period.  By  an  act  of  1430, 
added  to  in  1432,  which  remained  in  force  for  four  hundred 
years,  until  the  reform  bill  of  1832,  the  right  of  voting  in 
the  election  of  county  members  was  limited  to  the  famous 
forty  shilling  freeholder  class :  the  elector  must  have  "  free 
land  or  tenement  to  the  value  of  forty  shillings  by  the  year 
at  least  above  all  charges."  <J  This  act  has  been  called  a  dis- 
franchising statute,  but  it  is  a  question  whether  the  pream- 
ble does  not  honestly  state  the  reason  for  its  enactment :  to 
prevent  the  rioting  and  disorder  occasioned  by  the  unruly 
numbers  gathered  at  elections.  It  seems  to  have  made  little 
difference  in  the  kind  of  persons  elected  and  the  statute  of 
1445  was  still  thought  necessary.  There  was  no  regulation 
of  the  borough  franchise  by  parliament  until  the  nineteenth 
century,  each  borough  being  left  to  regulate  the  matter  itself 
according  to  its  own  local  customs  of  election. 

In   the  control  of  expenditure  and  the  appropriation  of 

7  A.  and  S.,  19.5. 

8  A.  and  S.  179-180;  cf.  Nos.  Ill  and  113, 
oA.  and  S„  190-191. 


CONTROL  OF  EXPENDITURE  227 

supply  to  particular  objects,  parliament  developed  the  prec- 
edents of  the  previous  century  to  such  an  extent  that,  if 
constitutional  growth  had  continued  steadily  along  the  lines 
of  the  Lancastrian  age,  modern  practices  might  have  been 
shortly  established.10  It  was  commonly  specified  that  the 
grants  of  general  taxes  made  the  king  were  for  the  defence  of 
the  kingdom,  tunnage  and  poundage,  now  beginning  to  be 
granted  for  life,  was  assigned  to  the  navy,  a  portion  of  the 
customs  on  wool  to  the  maintenance  of  Calais,  and  the  income 
of  the  crown  domains  to  the  expenses  of  the  household.  The 
beginning  was  in  the  right  direction,  for  in  the  daily  carry-1 
ing  on  of  the  government  modern  parliaments  have  found  the 
limiting  of  expenditure  a  more  effective  means  of  controlling 
the  executive  than  the  power  to  withhold  supplies,  but  in 
the  reaction  in  favor  of  a  strong  monarchy  which  followed 
the  Lancastrian  period  this  advantage  was  lost  and  had  to 
be  recovered  or  perhaps  more  accurately  gained  anew,  in 
the  seventeenth  century. 

In  the  improvement  of  the  process  of  legislation  the  chief 
change  was  that  parliament  finally  overcame  the  danger 
that  the  statute  based  upon  their  petition  might  be  some- 
thing different  from  the  one  they  had  requested.  In  1414 
a  definite  pledge  was  obtained  from  Henry  V  that  nothing 
should  be  added  to  petitions  beyond  what  was  included  in 
them,  the  king  expressly  reserving  the  right  to  reject  peti- 
tions and  apparently  also  parts  of  petitions.11  Under 
Henry  VI  a  further  and  final  step  was  taken  by  what  is 
commonly  referred  to  as  the  substitution  of  bills  for  peti- 
tions. The  bill  embodied  the  statute  requested  exactly  in 
the  form  in  which  it  was  to  be  enacted,  so  that  the  opportu- 
nity of  making  changes  in  drawing  the  statute  up  was  cut 
off.  If  this  form  of  legislation  was  first  made  use  of  by  the 
king  for  convenience'  sake  in  the  bills  originating  with  him, 
the  commons  were  not  slow  to  see  the  opportunity  offered 

10  A.   and   S.,   178-179,  182-184. 
"A.  and  S.,  181-182. 


228  PREMATURE  CONSTITUTION 

them  to  take  advantage  of  it,  really  putting  themselves  on 
a  par  with  the  king  in  the  initiation  of  legislation  in  possi- 
bility if  not  in  present  fact.  Some  relics  of  the  form  of  peti- 
tion long  survived  in  the  forms  of  acts  of  parliaments,  and 
in  financial  legislation  to  the  present  day.  An  act  of  Eliz- 
abeth's reign  opens :  "  In  their  most  humble  wise  beseech 
your  most  excellent  Majesty  your  faithful  and  humble  sub- 
jects ...  in  this  present  Parliament  assembled  .  .  .  that 
with  your  Highness'  favour  and  royal  assent  it  may  be  en- 
acted .  .  ."  12  The  preamble  of  a  modern  money  bill  reads : 
"  We  your  Majesty's  most  dutiful  and  loyal  subjects  the 
Commons  of  the  United  Kingdom  .  .  .  have  freely  and  vol- 
untarily resolved  to  give  and  grant  .  .  .  and  do  therefore 
most  humbly  beseech  your  Majesty  that  it  may  be  enacted 
and  be  it  enacted  .  .  ."  But  these  forms  had  long  lost  all 
practical  meaning. 

In  one  particular  a  considerable  change  was  made  in  the 
work  which  the  fourteenth  century  had  accomplished  and 
the  change  illustrates  well  the  character  of  this  time  and  for 
a  different  reason  of  the  following  time.  Impeachment  fell 
into  abeyance  and  the  bill  of  attainder  was  substituted  for 
it.  A  bill  of  attainder  declares  that  a  certain  man  is  guilty 
of  a  certain  crime  and  that  a  specified  punishment  shall  be 
inflicted  upon  him.  If  the  bill  is  passed  it  becomes  a  statute, 
and  the  man  is  by  statute  law  guilty  and  he  is  punished  ac- 
cording to  the  statute.  Attainder  was  a  sharper  and  quicker 
process  than  impeachment  and  avoided  some  of  the  difficul- 
ties of  the  judicial  trial  necessary  to  it,  though  parliament 
sometimes  heard  the  accused  in  his  own  defence.  But  con- 
stitutionally it  was  an  even  more  important  change  from 
impeachment.  The  latter  had  for  its  object  the  coercion  of 
the  king,  and  it  would  necessarily  be  in  times  of  serious  con- 
flict between  king  and  parliament  that  it  would  be  resorted 
to.  Attainder  was  a  sign  that  king  and  parliament  were 
in  agreement,  since  the  king  must  sign  the  bill ;  as  a  matter 

12  Prothero,  Documents,  22,  cf.  2. 


PRIVILEGES  ESTABLISHED  229 

of  fact  in  its  actual  use,  until  we  come  to  the  seventeenth  cen- 
tury, it  was  commonly  a  sign  that  parliament  was  under  the 
control  of  the  king  and  was  ready  to  do  what  he  might  ask. 
Theoretically  attainder  served  the  same  purpose  as  impeach- 
ment, the  parliamentary  control  of  the  king's  minister,  but 
practically  it  was  always  an  abuse,  and,  when  parliament 
learned  the  new,  modern  method  of  controlling  the  ministry,  it 
disappeared.  In  the  United  States,  though  it  had  been  con- 
sidered a  proper  proceeding  in  the  colonies,  it  was  forbidden 
in  the  Constitution. 

Comparatively  considered  the  gains  established  by  par- 
liament in  this  century,  commonly  called  privileges  of  par- 
liament rather  than  rights,  were  small  things,  but  in  that 
stage  of  progress  important.  As  with  the  greater  advances 
of  the  fourteenth  century,  not  all  of  these  privileges  were 
completely  established  at  once.  Some  of  them,  like  free- 
dom of  debate,  were  called  in  question  for  a  long  time.  But 
a  substantial  beginning  was  made  in  them  all  during  the 
Lancastrian  period.  In  comparison  with  these,  the  special 
facts  in  which  the  parliamentary  control  of  the  council 
expressed  itself,  which  seem  on  the  surface  the  most  striking 
facts  of  the  period,  are  of  minor  interest  because  they  did 
not  become  precedents  of  constitutional  importance.  The 
responsibility  of  the  council,  that  is  of  the  executive  and 
administrative  departments,  to  the  legislature,  had  to  be  re- 
established at  a  later  time,  after  the  results  of  the  Tudor 
reaction  had  been  overcome,  and  it  was  then  done  from  a 
different  beginning  and  in  a  different  way.  But  the  his- 
tory of  the  council  during  the  period  is  interesting,  partly 
as  showing  the  extent  of  parliamentary  control,  partly  as 
showing  the  continuation  of  the  methods  devised  by  the 
baronial  opposition  in  the  thirteenth  century,  and  partly 
as  a  foreshadowing  of  later  growth. 

It  is  impossible  to  understand  the  history  of  the  council,  in 
its  various  transformations  and  sloughing  off  processes 
through  centuries  of  time,  unless  the  fact  is  clearly  held  in 


230  PREMATURE  CONSTITUTION 

mind  that  it  is  the  direct  descendant  of  the  small  council  of 
the  feudal  age  and  continues  that  institution  in  capacities  and 
functions  unaltered  into  modern  times ;  continues  it  to  the 
middle  of  the  seventeenth  century  at  least,  thougli  there  are 
changes  of  emphasis,  changes  in  the  relative  importance  of  the 
functions  exercised.  In  the  early  Norman  period,  as  has 
already  been  explained,  in  the  intervals  between  the  meetings 
of  the  great  council,  the  small  council  was  for  practically  all 
purposes  in  powers  and  capacities  identical  with  the-  great 
council.  There  are  some  things  which  it  would  probably  not 
have  been  asked  to  do,  for  example  the  sanctioning  of  an 
extraordinary  aid  to  be  paid  by  all  barons,  but  for  all  the 
ordinary  operations  of  government  the  small  council  pos- 
sessed, when  the  great  council  was  not  in  session,  supreme 
legislative,  judicial,  advisory  and  administrative  powers. 
It  was  the  special  organ  of  the  king's  prerogative,  that  is,  it 
was  the  instrument  through  which  he  exercised  those  powers 
in  which  he  was  placed  above  the  law.  The  special  bearing 
of  these  facts  upon  our  understanding  of  council  history  is 
to  be  found  further  in  the  fact  that,  whatever  transforma- 
tions the  council  may  undergo,  whatever  new  institutions  are 
thrown  off  from  it  to  exercise  some  of  its  functions,  the 
powers  and  capacities  of  the  original  council  are  not  thereby 
extinguished  in  its  descendant,  nor  are  they  reduced  except 
perhaps  in  emphasis.  These  facts  which  are  simple  enough 
in  themselves  are  the  solution  of  the  chief  difficulties  which 
trouble  us  both  in  the  history  of  the  council  and  in  the 
early  history  of  the  institutions  derived  from  it. 

In  our  study  of  English  history  before  the  fifteenth  cen- 
turv,  we  have  already  seen  three  important  institutions 
thrown  off  to  exercise,  as  their  peculiar  work,  administrative 
and  judicial  functions  of  the  council,  that  is  exchequer, 
chancerv  and  king's  bench,  and  there  have  been  transforma- 
tions affecting  the  emphasis  placed  upon  two  other  functions, 
the  advisory  and  the  legislative.  In  the  case  of  exchequer 
and  chancery,  the  fact  which  has  given  particular  difficulty 


INSTITUTIONAL  DIVISION  231 

is  not  the  retention  of  the  original  faculty  by  the  council 
after  the  differentiation,  but  rather  the  apparent  retention 
by  the  new  institution,  after  it  seems  to  have  been  thrown 
off,  of  the  power  to  act  occasionally  as  if  it  were  the  council 
itself.  The  same  thing  is  true  in  a  somewhat  different  way 
of  the  king's  bench  court.  The  fact  which  is  common  to  all 
these  cases  throws  a  helpful  light  on  the  process  of  differ- 
entiation and  its  wholly  unconscious  character.  In  all  cases 
what  is  first  set  apart  from  the  council  is  not  an  institution 
but  a  class  of  council  business :  in  the  exchequer,  financial ; 
in  the  chancery,  administrative  and  then  judicial;  in  the 
king's  bench,  common  law  problems  for  judicial  solution.  In 
each  case  it  is  at  first  the  council  which  acts.  The  business 
is  separately  classified,  the  institution  is  not  divided.  At  a 
session  at  which  its  chief  business  is  financial,  it  can  still 
try  a  suit  at  law  because  it  is  the  council.  But  more  and 
more  the  division  becomes  institutional.  More  and  more 
the  particular  business  settles  into  the  hands  of  those  mem- 
bers of  the  council  who  have  an  official  connection  with  it, 
or  a  special  fitness  for  it,  and  becomes  the  exclusive  business 
of  these  sessions.  But  even  when  this  separation  becomes 
practically  complete,  it  is  still  not  clearly  perceived  that  an 
institutional  differentiation  has  taken  place.  Exchequer 
business  had  been  set  apart  from  the  ordinary  business  of 
the  council  at  least  as  early  as  the  first  part  of  the  twelfth 
century,  but  in  the  first  part  of  the  fourteenth  the  exchequer 
still  occasionally  did  council  business  and  contemporaries 
indicate  no  feeling  that  the  action  was  improper  or  even 
irregular.  It  was  only  slowly  perceived  in  any  of  the  cases 
of  council  differentiation,  medieval  or  modern,  that  a  new 
institution  had  been  created  and  therefore  very  naturally 
there  was  for  a  long  time  what  seems  to  us  like  the  appro- 
priation of  the  function  of  one  institution  by  another,  and 
facts  which  should  help  us  to  understand  what  has  taken 
place  really  help  to  puzzle  us. 

So  far  as  the  history  of  the  council  in  the  fifteenth  century 


232  PREMATURE  CONSTITUTION 

is  concerned,  we  have  to  consider  changes  in  emphasis  rather 
than  the  differentiation  of  institutions.  Two  important 
changes  of  the  kind  had  already  occurred.  During  the  mi- 
nority of  Henry  III,  in  the  first  part  of  the  thirteenth  cen- 
tury, the  conciliar  or  advisory  function,  the  business  of 
the  council  to  assist  in  determining  and  directing  the  policy 
of  the  government,  had  been,  in  troubled  times,  emphasized 
as  never  before.  So  clearly  is  this  the  case  that  it  has  some- 
times been  said  that  there  was  then  a  new  beginning  in  council 
history.  Such  a  statement  is  an  exaggeration  of  the  change, 
but  it  is  true  that  from  that  time  on  the  special  function 
of  giving  counsel  is  more  noticeably  regarded ;  the  council 
as  council  is  more  prominent;  men  are  appointed  to  it  witli 
special  reference  to  this  function ;  and  an  oath  begins  to  be 
taken  by  them  that  they  will  perform  it  loyally.  The  second 
change  is  in  the  opposite  direction,  the  dwarfing  of  a  council 
function,  and  it  is  brought  about  in  the  fourteenth  century 
D3r  the  more  and  more  exclusive  assumption  of  the  function 
of  legislation  by  the  new  outgrowth  of  the  great  council,  that 
is,  by  parliament.  Ordinances  by  kings  and  council,  either 
great  council  or  small  council,  continue  possible  for  some 
time,  and  in  very  attenuated  form  the  function  survives  in 
the  council  to  the  present  time,  as  we  have  seen,  but  the 
change  of  emphasis  in  the  fourteenth  century  is  decided. 

A  third  change  of  this  same  kind  should  be  included  to 
make  the  history  of  the  council  complete,  though  we  are  not 
able,  at  present  at  least,  to  say  anything  definite  as  to  dates 
of  beginnings  or  of  the  forms  in  which  the  changes  showed 
themselves.  This  change  is  the  growing  importance  of  the 
council's  administrative  business.  The  council  had  always 
been  the  supreme  administrative  organ  of  the  government  and 
a  good  deal  of  what  had  been  in  the  earliest  times  its  adminis- 
trative business  had  been  set  off*  to  the  new  institutions  which 
had  been  formed,  as  being  attendant  in  those  times  upon  their 
business  proper,  especially  to  the  itinerant  justice  court,  ex- 
chequer and  chancery.     And  yet  it  is  clear  that  the  council's 


ADMINISTRATIVE  BUSINESS  OF  COUNCIL      233 

business  of  this  sort  had  not  decreased  but  rather  steadily 
increased.  It  is  probable  that  the  change  is  not  to  be  at- 
tributed to  any  one  time  or  situation,  like  the  minority  of 
Henry  III  in  relation  to  the  advisory  function  for  instance, 
but  that  it  reflects  and  is  caused  by  the  growing  complexity 
of  affairs,  public  and  private,  the  growth  of  population, 
commerce  and  wealth,  the  larger  amount  of  business  which 
the  government  must  do  and  the  larger  expenses  it  must  meet. 

The  things  which  are  most  interesting  to  us  in  the  history 
of  the  council  during  the  fifteenth  century  are  not  in  reality 
parts  of  its  permanent  growth.  They  are  rather  the  ap- 
parent development  of  a  constitutional  position  which  is  not 
permanent,  or  which  is  at  most  a  premature  foreshadowing 
of  something  to  be  reached  at  a  much  later  time  and  in  a 
quite  different  way.  It  is  indeed  not  into  one  constitutional 
position  that  the  council  seems  to  be  growing  during  the 
century  but  at  different  times  into  two  contrasting,  perhaps 
they  should  be  called  opposing,  positions.  At  one  time  the 
council  seems  completely  under  parliamentary  control,  hardly 
more  than  a  subordinate  organ  for  carrying  out  the  policy 
determined  on  in  parliament,  or,  so  far  as  practical  result 
is  concerned,  not  very  different  from  the  cabinet  of  today. 
Such  was  its  position  during  a  good  deal  of  the  time  in  the 
reigns  of  Henry  IV  and  Henry  V,  and  during  the  minority 
of  Henry  VI.13  At  other  times  the  council  was  independent 
of  parliament,  seems  indeed  more  powerful  than  parliament, 
and  to  be  the  real  organ  of  government  acting  for  a  stronger 
king.  Such  was  its  position  for  a  time  after  the  end  of 
Henry  VI's  minority  and  under  Edward  IV,  and  such  is  the 
view  of  the  council's  place  in  the  government  which  was 
inherited  by  the  Tudor  monarchy  of  the  next  age.  The 
parliamentary  control  of  the  earlier  Lancastrian  period  was 
not  exercised  in  the  direct  fashion  of  modern  times,  but  it 
was  the  kind  of  direct  control  which  had  been  demanded  by 
the  baronial  opposition  of  the  thirteenth  and  fourteenth  cen- 

13  A.  and  S.,  184-190. 


234  PREMATURE  CONSTITUTION 

turies.  Parliament  named  the  members  of  the  council  or 
insisted  that  the  king  should  name  them  in  parliament,  which 
gave  it  a  virtual  veto ;  it  made  the  councillors  dependent 
upon  itself  for  their  salaries,  prescribed  the  oath  which  they 
should  take,  and  adopted  regulations  regarding  their  busi- 
ness. While  this  relationship  between  parliament  and  coun- 
cil is  not  a  permanent  contribution  to  the  formation  of  the 
constitution,  it  is  a  striking  indication  of  the  power  which 
parliament  had  acquired  at  the  time. 

The  separate  jurisdiction  which  chancery  had  established 
upon  the  basis  of  the  equitable  or  prerogative  powers  of  the 
council  was  much  enlarged  and  strengthened  during  the 
fifteenth  century.  It  had  so  far  developed  in  the  previous 
century  that  petitions  began  to  be  addressed  directly  to  the 
chancellor  and  more  and  more,  indirectly  if  not  directly,  his 
independent  jurisdiction  was  recognized  in  law  and  in  official 
documents.  The  right  of  the  chancellor's  court  to  enforce 
the  dictates  of  conscience  in  cases  where  the  common  law, 
limiting  itself  to  the  face  of  a  document  and  to  direct  evi- 
dence producible  by  the  plaintiff,  had  no  means  of  enforcing 
an  agreement,  was  one  of  the  chief  sources  of  its  growth  in 
the  fifteenth  century.  This  right  brought  into  chancery 
a  rapidly  increasing  amount  of  business  as  the  practice  of 
conveying  land  to  uses  became  more  and  more  frequent.  The 
common  law  courts  renounced  the  right  to  protect  the  inter- 
ests of  the  person  for  whose  benefit  the  trust  was  created  (the 
cestui  qui  use)  because  the  conveyance  to  the  trustee  was 
complete  on  its  face  and  the  business  therefore  fell  naturally 
to  the  chancery  court. 

One  royal  prerogative  received  a  definition  in  this  period 
which  gave  rise  to  a  serious  constitutional  danger  in  a  later 
age  —  the  so  called  dispensing  power.  The  struggle  between 
parliament  and  council  over  the  right  of  legislation  was  in 
reality  a  struggle  with  the  king's  sole  right  to  make  laws,  a 
prerogative  which  the  feudal  state  recognized  and  which 
was  destined  to  survive  in  the  modern  state  in  something  like 


THE  DISPENSING  POWER  235 

its  original  form  in  the  royal  absolute  veto.  But  if  the  king 
could  by  himself  make  the  law,  he  ought  logically  to  be  able 
to  set  the  law  aside,  or  the  pains  and  penalties  of  the  law  in 
a  particular  instance.14  The  great  practical  advantage, 
almost  the  moral  necessity,  of  such  a  power  in  the  case  of  a 
convicted  criminal  afterwards  found  to  be  innocent  has  kept 
one  phase  of  this  prerogative  in  operation  almost  without 
question  to  the  present  time.  But  if  it  was  a  desirable  power 
in  this  case,  was  there  any  logical  limit  to  its  use?  Might 
not  the  king  grant  a  pardon  in  advance,  or  a  license  to  act 
contrary  to  a  statute,  or  dispense  with  obedience  to  civil  as 
well  as  criminal  statutes,  or  even  suspend  the  operation  of  a 
statute  entirely?  As  parliament  came  to  understand  more 
clearly  what  was  involved  in  its  claim  to  a  voice  in  all  legis- 
lation, it  began  to  remonstrate  and  strive  to  hold  the  prerog- 
ative within  limits  which  it  considered  reasonable.  The 
effort  was  really  part  of  the  wider  struggle  to  limit  prerog- 
ative in  relation  to  the  making  or  the  administration  of  law 
which  characterizes  the  fourteenth  century :  to  limit  for 
instance  the  right  of  chancery  to  issue  writs  not  based  upon 
a  previous  precedent,  an  attempt  which  had  been  begun  by 
the  opposition  in  the  thirteenth  century  before  there  was  any 
parliament ;  or  again  to  limit  the  extraordinary  or  arbitrary 
jurisdiction  of  the  council,  especially  in  cases  alleged  to  be 
criminal,  a  jurisdiction  which  the  opposition  vigorously  as- 
serted to  be  in  violation  of  chapter  39  of  Magna  Carta  but 
which  was  exceedingly  hard  to  regulate  and  the  foundation  in 
the  next  period  of  the  dangerous  jurisdiction  of  the  court  of 
star  chamber. 

The  dispensing  power  found  a  considerable  extension  in 
practice  with  the  passing  of  the  anti-papal  statutes  under 
Edward  III  of  provisors  and  praemunire,  and  we  may  say 
was  almost  sanctioned  by  the  law  itself  in  the  earlier  statute 
of  Mortmain.  Dispensations  from  these  acts  naturally  had 
the  powerful  influence  of  the  church  in  their  support  and 

14  Cf.    A.    and    S.,    108-109. 


236  PREMATURE  CONSTITUTION 


were  troublesome  precedents.  Parliament  found  it  exceed- 
ingly difficult  to  establish  limits  which  could  be  maintained  in 
practice  between  the  useful  on  one  side  and  the  dangerous 
on  the  other.  The  law  courts  in  this  and  the  next  period 
succeeded  not  much  better  in  recognizing  the  king's  rights  to 
grant  dispensations  in  the  case  of  a  crime  created  by  statute 
(malum  prohibitum)  and  in  cases  where  he  alone  would 
suffer  from  remission  of  penalties,  and  denying  it  in  the  case 
of  a  crime  by  divine  law  (malum  in  sc)  and  in  the  cases 
where  others  would  suffer  loss  by  his  act.  The  right  passed 
on  to  the  sixteenth  and  seventeenth  centuries  clearly  recog- 
nized in  principle,  gravely  questioned  by  parliament  and  the 
courts  in  some  of  its  application,  but  with  no  clear  limita- 
tions fixed  either  by  law  or  precedent. 

The  reaction  against  the  Lancastrian  constitutional  mon- 
A  archy  began  before  the  end  of  the  fifteenth  century.  The 
wars  of  the  Roses,  which  were  at  first  only  a  factious  rivalry 
for  influence  in  the  government  under  a  helpless  king  but 
which  passed  soon  into  a  dynastic  civil  war,  were  a  predis- 
posing influence.  The  political  skill  and  determined  char- 
acter of  Edward  IV  and  Richard  III  were  matched  by  no 
leadership  in  opposition  which  had  any  understanding  of  con- 
stitutional principles  or  any  interest  in  maintaining  a  limited 
monarchy.  On  the  other  hand  the  kings  themselves  seem  to 
have  no  such  foresight  of  the  dangerous  situation  into  which 
arbitrary  kingship  had  been  drifting  as  we  may  possibly 
attribute  to  Richard  II.  They  were  determined  to  be  the 
most  powerful  force  in  the  state  because  of  the  dangers  which 
threatened  them  from  insurrections  rather  than  because  of 
those  which  threatened  from  constitutional  progress.  They 
began  some  of  the  methods  of  a  practical  absolutism  which 
were  afterwards  carried  farther  by  the  Tudors,  but  with  no 
conscious  intention  of  founding  absolute  monarchy.  They 
packed  the  house  of  commons  with  their  adherents;  they 
kept  parliament  from  meeting  during  long  intervals  of  time 
in   sharp   contrast  with   the   fourteenth   century ;   and   they 


i- 


PRINCIPLES  OF  CIVIL  LIBERTY  237 

provided  themselves  with  an  independent  revenue  at  least 
partially  sufficient  for  their  needs  by  means  of  forced  loans 
and  forced  gifts,  "  benevolences  "  they  called  them.  But 
perhaps  it  was  the  mere  accession  of  the  house  of  York  to 
the  throne,  emphasizing  the  right  of  strict  hereditary  suc- 
cession in  the  teeth  of  a  statute,  which  was  the  most  severe 
blow  to  parliamentary  supremacy  struck  at  the  time. 

There  are  certain  principles  of  civil  liberty  which  at  the 
end  of  the  fifteenth  century  protected  the  individual  from 
the  arbitrary  action  of  the  government.  They  had  been 
established  in  England  in  the  common  law,  that  is,  in  private 
rather  than  in  public  law,  but  in  America  we  have  made  them 
parts  of  the  constitution.  As  a  part  of  his  resume  of  results 
already  attained,  Hallam  calls  attention  to  them  near  the 
beginning  of  his  Constitutional  History  of  England  in  these 
words :  "  No  man  could  be  committed  to  prison  but  by  a 
legal  warrant  specifying  his  offence  and  by  a  usage  nearly 
tantamount  to  constitutional  right,  he  must  be  speedily 
brought  to  trial  by  means  of  regular  sessions  of  gaol-delivery. 
The  fact  of  guilt  or  innocence  on  a  criminal  charge  was 
determined  in  a  public  court,  and  in  the  county  where  the 
offence  was  alleged  to  have  occurred,  by  a  jury  of  twelve  men, 
from  whose  unanimous  verdict  no  appeal  could  be  made. 
Civil  rights,  so  far  as  they  depended  on  questions  of  fact, 
were  subject  to  the  same  decision.  The  officers  and  servants 
of  the  crown,  violating  the  personal  liberty  or  other  right  of 
the  subject,  might  be  sued  in  an  action  for  damages  to  be 
assessed  by  a  jury,  or,  in  some  cases,  were  liable  to  criminal 
process  nor  could  they  plead  any  warrant  or  command  in 
their  justification,  not  even  the  direct  order  of  the  king." 

To  this  may  be  added,  as  a  general  conclusion,  the  striking 
summary  of  Bishop  Stubbs  of  the  constitutional  situation 
under  the  Lancastrian  Kings,  for  what  had  been  then  accom- 
plished in  the  making  of  the  constitution  is  what  becomes 
permanent  and  passes  on  to  the  Tudor  age.  The  Yorkist 
kings  did  indeed  establish  a  practical  absolutism  but  not  a 


238  PREMATURE  CONSTITUTION 

theoretical  or  institutional  one,  such  as  apparently  Richard 
II  had  tried  to  set  up.  They  controlled  parliament  by  pack- 
ing it  with  their  adherents  and  by  their  military  strength, 
but  they  did  not  attempt  themselves  to  assume  the  functions 
of  parliament.  They  raised  much  money  which  parliament 
had  not  granted  but  in  the  form  of  loans  or  gifts,  not  nom- 
inally as  taxation.  They  thus  laid  the  foundation  not 
merely  of  Tudor  power  but  of  Tudor  practice,  the  practice 
of  ruling  according  to  the  king's  will  by  means  of  the  forms 
of  the  constitution  and  the  help  of  a  subservient  parliament. 
Says  Bishop  Stubbs:  "  It  is  true  that  neither  in  the  vague 
promises  of  Henry  IV  nor  in  the  definite  recommendations  of 
Sir  John  Fortescue  are  to  be  found  enunciations  of  the  clear 
principles  or  details  of  the  practice  of  the  English  constitu- 
tion. But  the  constitution  did  not  now  require  definitions. 
The  discipline  of  the  fourteenth  century,  culminating  in  the 
grand  lesson  of  revolution,  had  left  the  nation  in  no  igno- 
rance of  its  rights  and  wrongs.  The  great  law  of  custom 
written  in  the  hearts  and  lives  and  memories  of  Englishmen, 
had  been  so  far  developed  as  to  include  everything  material 
that  had  been  won  in  the  direction  of  popular  liberties  and 
even  of  parliamentary  freedom.  The  nation  knew  that  the 
king  was  not  an  arbitrary  despot,  but  a  sovereign  bound  by 
oaths,  laws,  policies,  and  necessities,  over  which  they  had 
some  control.  They  knew  that  he  could  not  break  his  oath 
without  God's  curse ;  he  could  not  alter  the  laws  or  impose  a 
tax  without  their  consent  given  through  their  representatives 
chosen  in  their  county  courts.  They  knew  how,  when,  and 
where  these  courts  were  held,  and  that  the  mass  of  the  nation 
had  the  right  and  privilege  of  attending  them ;  and  they 
were  jealously  on  the  watch  against  royal  interference  in 
their  elections.  And  so  far  there  was  nothing  very  complex 
about  constitutional  practice:  there  was  little  danger  of 
dispute  between  lords  and  commons:  the  privilege  of  members 
needed  only  to  be  asserted  and  it  was  admitted :  there  was  no 
restriction  on  the  declaration  of  gravamina,  or  on  the  im- 


A  SOUND  FOUNDATION  239 

peachment  of  ministers  or  others  who  were  suspected  of  exer- 
cising a  malign  influence  on  the  government.  When  the  king 
promised  to  observe  their  liberties,  men  in  general  knew  what 
he  meant,  and  watched  how  he  kept  his  promise.  They  saw 
the  ancient  abuses  disappear ;  complaints  were  no  more  heard 
of  money  raised  without  consent  of  parliament,  or  of  illegal 
exaction  by  means  of  commissions  of  array ;  the  abuses  of 
purveyance  were  mentioned  only  to  be  redressed  and  pun- 
ished, and  if  legal  decisions  were  left  unexecuted,  it  was  from 
want  of  power  rather  than  from  want  of  will." 

Bibliographical  Note. —  J.  F.  Baldwin,  The  King's  Council, 
1913.  A.  V.  Dicey,  The  Privy  Council,  1860.  J.  Gairdner, 
Life  and  Reign  of  Richard  III,  1898.  C.  L.  Kingsford,  Henry 
V,  1901.  C.  H.  Mcllwain,  The  High  Court  of  Parliament,  1910. 
L.  O.  Pike,  The  Constitutional  History  of  the  House  of  Lords, 
1894-.  T.  F.  T.  Plucknett,  The  Place  of  the  Council  in  the  Fif- 
teenth Century,  Trans.  Royal  Hist.  Soc,  Series  IV,  vol.  1,  157, 
1918.  A.  F.  Pollard,  The  Evolution  of  Parliament,  1920.  L. 
Riess,  Geschichte  des  JVahlrechts  zum  Englischen  Parlament  im 
Mittelalter,  1885.  K.  H.  Vickers,  Humphrey  Duke  of  Glou- 
cester, 1907. 


CHAPTER  X 
THE  TUDOR  STRONG  MONARCHY 

The  revolution  by  which  Richard  III,  the  last  of  the 
Yorkist  kings,  was  overthrown  and  the  house  of  Tudor  estab- 
lished on  the  throne  in  the  person  of  Henry  VII  excited 
little  interest  in  the  nation  at  large.  It  was  not  a  constitu- 
tional revolution  as  that  of  1399  had  been.  At  the  moment 
no  one  could  tell  that  it  was  not  another  of  the  many  ups 
and  downs  of  the  wars  of  the  Roses,  in  which  also  as  a  whole 
the  nation  had  not  been  greatly  concerned.  The  only  con- 
stitutional principle  which  it  could  be  cited  in  the  future  to 
support  was  the  right  of  Parliament  to  determine  the  suc- 
cession in  the  return  to  the  younger  line,  which  it  then  decreed 
at  the  expense  of  the  elder.  But  this  principle  was  by  no 
means  so  clearly  asserted  as  in  1399  and  was  not  strength- 
ened by  the  later  marriage  of  Henry  VII  with  the  heiress  of 
the  Yorkist  Edward  IV.  The  Tudors  came  to  the  throne 
as  the  result  of  no  national  movement  in  defence  of  the  con- 
stitution and  under  no  implied  pledge  to  respect  the  powers 
of  parliament. 

Nor  was  the  general  situation  an  aid  to  constitutional 
government.  It  was  a  new  and  stormy  age  on  which  Europe 
as  a  whole  was  then  entering,  the  transition  in  political  his- 
tory from  medieval  to  modern  times.  The  modern  nations 
had  assumed  something  like  their  final  form.  France  had 
acquired,  not  quite  its  final  eastern  boundary,  but  its  general 
geographical  outlines  ;  the  great  feudal  baronies,  earlier  inde- 
pendent, had  been  overcome  or  absorbed;  the  government 
of  the  state  had  been  centralized  in  the  sovereign,  not  with 
the  perfection  of  detail  to  be  obtained  in  the  seventeenth 

240 


A  NEW  VISION  OF  EMPIRE  241 

century,  but  to  the  exclusion  of  any  rival  powers.  In  the 
Spanish  peninsula  the  chief  kingdoms  which  had  been  so 
long  pushing  back  the  Moors  were  now  brought  under  one 
rule  by  the  marriage  of  Ferdinand  and  Isabella,  and  by  a 
sharper  and  quicker  process  than  in  France,  largely  of  force, 
an  absolutism  practically  as  effective  as  the  French  had  been 
established.  The  house  of  Austria,  which  had  added  to  its 
southeastern  dominions  the  most  of  the  great  Rhenish  com- 
bination, the  patchwork  which  had  been  formed  by  the  ambi- 
tion of  the  dukes  of  Burgundy,  was  just  entering  upon  the 
great  period  of  its  history. 

New  ambitions  were  rising  before  these  new  states  soon 
to  be  the  first  "  great  powers  "  of  modern  diplomacy,  which 
was  then  itself  also  new.  Medieval  conditions  had  passed 
away.  In  the  immediately  preceding  centuries  the  pressing 
problem  before  every  government  was  national  or  internal 
consolidation  and  centralization.  If  a  ruler  of  the  later 
middle  ages  sought  to  build  up  an  interstate  alliance,  in  the 
great  majority  of  cases  his  purpose  was  not  dominion  out- 
side the  boundaries  he  was  striving  to  establish,  but  he  hoped 
by  foreign  help  more  easily  to  overcome  some  difficulty  within 
those  boundaries.  Those  difficulties  were  now  so  far  over- 
come in  these  great  states  that  the  ruler  could  give  his  chief 
interest  to  other  things.  Then  opened  out  a  new  vision  of 
empire,  not  now  of  a  Holy  Roman  Empire  co-extensive  with 
Christendom  and  founded  in  the  divine  plan  for  human  his- 
tory, which  was  the  medieval  dream.  This  conception  was 
not  a  part  of  fifteenth  century  plans,  and  the  word  empire 
took  on  then  a  new  meaning.  It  began  to  mean  the  domin- 
ion and  power  of  a  state  outside  its  national  boundary 
lines ;  in  a  few  cases  perhaps,  it  included  the  annexation  of 
other  states  or  parts  of  states,  but  more  truly  it  meant  the 
conception  and  inauguration  of  the  struggle  for  the  domina- 
tion of  Europe  by  a  single  state.  This  has  been  the  con- 
ception, broadened  later  into  an  idea  of  world  domination, 
which  has  brought  on  all  the  great  wars  of  European  history 


242  THE  TUDOR  STRONG  MONARCHY 

since  that  date,  and  we  can  only  hope  that  in   the  great 
world  war  of  1914  we  have  seen  its  last  stage. 

In  this  first  phase  of  modern  international  rivalry,  the 
great  contestants  were  France  and  Spain.  Between  them 
England  was  a  little  state  hardly  sufficient  to  furnish  a  bal- 
ance of  power;  but  she  had  well  in  hand  resources  somewhat 
out  of  proportion  to  her  size,  and  her  geographical  position 
then  as  always  gave  her  a  peculiar  security.  But  it  was  a 
dangerous  age  for  a  small  state.  The  great  powers  of  the 
continent  were  eager  to  use  her  for  their  own  ends,  and  it 
was  only  by  the  most  skilful  management  that  she  could 
avoid  entangling  her  fortunes  and  fate  in  one  alliance  or 
another.  The  danger  became  far  more  acute  when  the 
religious  revolution  of  the  sixteenth  century  complicated 
the  situation,  pushed  international  rivalries  to  extremes  and 
introduced  new  elements  of  fanaticism  and  hatred.  The 
danger  then  came  to  be  for  England  not  merely  one  of 
foreign  entanglements  but  one  of  domestic  civil  war  and 
revolution  as  well. 

It  is  no  wonder  that  in  such  an  age,  with  the  tacit  consent 
of  the  nation,  the  constitution,  the  limited  monarchy,  was 
practically  suspended.  The  wonder  is  that  it  escaped  de- 
struction. The  English  nation  had  just  passed  out  of  an 
age  in  which  the  horrors  of  civil  war  had  been  made  very 
real  and  a  strong  monarchy  had  been  found  something  of  a 
relief.  It  had  passed  into  an  age  in  which  the  general 
atmosphere  of  Europe  was  absolutist,  and  in  which  foreign 
and  domestic  problems  seemed  to  demand  concentration  of 
national  will  and  a  single  control  of  national  policy  and 
resources.  Clear-sighted  statesmanship  might  easily  justify 
a  return  to  practical  absolutism  with  the  general  support  of 
the  nation. 

We  should  have,""  however,  a  wrong  impression  of  the 
sixteenth  century  if  we  regarded  it  merely  as  an  age  in  which 
the  growth  of  the  constitution  was  suspended  and  an  absolu- 
tist reaction  had  full  sway.     It  was  in  two  particulars  at 


PARLIAMENT  IN  THE  16TH  CENTURY      243 

least  something  quite  different  from  that.  In  the  first  place 
in  important  respects  the  constitution  continued  in  operation. 
The  Tudor  sovereign  found  it  easier,  as  we  shall  presently 
see,  to  get  what  he  wanted  done  with  the  help  of  parliament 
and  by  the  forms  of  the  constitution  than  do  away  with  par- 
liament and  build  up  instead  an  institutional  absolutism. 
During  some  part  of  the  time  it  was  really  true  that  what  the 
king  wanted  the  nation  also  wanted;  sometimes  parliament 
was  controlled  and  induced  to  do  what  perhaps  the  majority 
of  the  nation  did  not  sanction ;  at  other  times,  especially  to- 
wards the  beginning  of  the  period,  parliament  was  thrown 
somewhat  into  the  background  and  long  intervals  were  al- 
lowed to  pass  between  its  sessions,  long  at  least  as  compared 
with  the  greater  part  of  the  period  since  the  accession  of 
Edward  III ;  and  in  the  opposite  direction  occasionally  par- 
liament asserted  a  will  of  its  own  and  refused  to  be  led  by 
the  king,  though  not  usually  in  large  matters.  But  under 
all  these  varying  conditions  parliament  was  used.  It  was 
the  legislating,  authorizing,  creative  instrument.  The  use 
which  was  made  of  the  constitution  was  no  doubt  the  use 
of  forms  of  which  the  spirit  had  departed.  The  forms  were 
used  to  carry  out  the  sovereign's  will,  not  to  limit  it  or  to 
carry  out  a  will  in  opposition  to  his.  But,  it  must  be  em- 
phasized, the  forms  were  used.  The  constitution  in  the 
matter  of  parliamentary  powers  and  functions  at  least  was 
kept  in  operation.  Nothing  was  lost  or  forgotten  which 
had  been  gained.  Everything  was  ready  to  be  filled  again 
with  the  spirit  of  a  truly  constitutional  monarchy  when 
conditions  should  so  change  that  the  struggle  with  the  king, 
which  would  be  necessary,  could  be  entered  upon  without 
national  danger. 

The  second  particular  in  which  the  Tudor  age  may  be 
seen  to  be  not  one  of  mere  reaction  was  given  its  peculiar 
character,*and  mdeed-^w-as-rendered.  possible,  by  this  use  of 
constitutional  forms  to  carry  out  the  king's  will.  Briefly 
and  in  general  form  the  fact  may  be  so  stated:  It  was  the 


244  THE  TUDOR  STRONG  MONARCHY 

most  important  positive  work  of  the  sixteenth  century  to 
bring  the  national  church  under  the  same  degree  of  parlia- 
mentary control  which  had  been  at  that  date  established  over 
the  monarchy.  The  medieval  church  withdrew  from  the  gov- 
ernment of  the  state  and  kept,  within  its  own  sphere  a  larger 
share  of  the  public  life  of  the  community  than  we  should 
think  likely  from  the  position  ot  any  modern  church.  Large 
fields  of  law,  wills  and  inheritance,  marriage  and  divorce, 
were  its  exclusive  province.  Some  administrative  functions 
of  the  modern  state,  like  the  care  of  the  poor,  were  in  its 
hands.  The  papacy  was  a  great  international  state  with 
all  the  organization  and  machinery  of  a  political  government. 
To  its  capital  went  up  from  all  the  countries  of  Europe  a 
constant  stream  of  reports,  appeals,  and  taxes,  and  an  equal 
stream  came  down  of  orders,  commissions,  and  judicial  deci- 
sions. In  some  respects  the  papacy  was  more  than  an  inter- 
national state  for  it  assumed  to  represent  the  divine  govern- 
ment more  directly  and  to  speak  with  a  higher  authority  than 
any  merely  political  state.  England  was  in  a  few  matters 
in  a  somewhat  more  independent  position  than  most  states  of 
the  time,  but  still  in  a  large  part  of  its  public  life  it  was  de- 
pendent not  upon  its  own  government  but  upon  a  foreign 
government. 

This  dependence  upon  a  foreign  government  it  was,  which 
was  the  first  thing  to  be  broken  in  the  sixteenth  century. 
With  the  religious  past  of  the  church  no  break  was  then 
intended,  but  the  government  of  the  state  assumed  full  con- 
trol of  all  public  interests  that  had  formerly  fallen  to  the 
charge  of  the  papacy  and  with  them  it  assumed  governmental 
control  of  the  church  itself.  This  was  in  itself  a  revolution, 
and  it  drew  logically  and  inevitably  a  larger  revolution  in 
its  train,  but  the  larger  revolution,  the  religious  revolution, 
it  does  not  belong  to  us  to  consider.  Nor  is  it  important 
for  us  to  know  how  far  personal  desires  of  King  Henry  VIII 
in  seeking  a  divorce  from  Catherine  of  Aragon,  or  wise  states- 
manship in  fear  of  a  doubtful  succession,  brought  the  result 


CONTROL  OF  ECCLESIASTICAL  MATTERS      245 

about.  What  is  important  for  our  subject  is  the  fact  that 
this  great  political  change,  this  revolution.,,  was  accomplished 
by  act  of  parliament.  By  a  senes"~oi  great  statutes  adopted 
in  successive  Sessions  of  the  Parliament  of  1529,  which  re- 
mained in  existence  for  seven  years,  one  bond  after  another 
which  bound  England  to  the  government  of  the  pope  was 
broken  and  the  king  put  in  his  place  as  governor  of  the 
church.  Even  considered  no  further  than  this,  these  acts 
were  an  extraordinary  exercise  of  parliamentary  power,  but 
they  go  much  farther.  In  them  was  laid  the  foundation  of 
future  parliamentary  control  of  ecclesiastical  matters  which 
has  been  exercised  in  the  last  hundred  years  in  ways  that 
would  have  seemed  drastic  in  the  extreme  even  to  the  revolu- 
tionists of  the  sixteenth  century.  And  more  than  this  even: 
that  the  king  should  have  asked  the  sanction  and  secured 
the  authority  of  parliament  for  changes  on  which  his  heart 
was  so  deeply  set  was  not  merely  a  striking  recognition  of 
the  position  of  parliament,  but  a  precedent  of  creative  value 

for  the  future.  "~— 

This  ecclesiastical  revolution  was  a  great  forward  move  in 
bringing  the  entire  round  of  public  affairs  under  national 
control,  and  when  we  take  it  into  account,  it  is  no  longer 
possible  to  say  that  the  sixteenth  century  was  an  age  when 
the  growth  of  the  constitution  was  suspended.  In  com- 
parison with  this  advance,  some  improvements  in  executive 
and  administrative  machinery,  some  increase  in  the  activity 
of  the  council,  not  now  under  parliamentary  control  but 
directly  representing  the  sovereign,  are  of  minor  importance. 
The  great  thing  is  that  the  powers  which  parliament  had 
gathered  into  its  hands  in  nearly  two  centuries  of  earlier 
growth  had  not  been  dropped,  but  had  rather  been  confirmed 
and  enlarged  in  its  possession,  as  marking  out  its  definite 
and  secure  function  in  the  state.  It  was  to  parliament  that 
the  king  turned  as  if  to  the  source  of  final  authority  and 
sanction  in  his  revolutionary  reorganization  of  the  state. 
New  precedents  of  far-reaching  importance  had  been  estab- 


246  THE  TUDOR  STRONG  MONARCHY 

lished  and  all  was  ready,  when  conditions  should  become 
more  favorable,  for  the  reconstruction  of  a  constitutional 
limited  monarchy  upon  a  broader  and  more  solid  foundation 
than  ever.  In  other  words,  the  constitutional  importance  of 
the  sixteenth  century  must  not  be  judged  by  considering  that 
age  in  itself  alone,  nor  by  estimating  the  methods  and  char- 
acter of  the  government  merely,  as  it  was  carried  on  from 
year  to  year,  but  by  taking  into  the  account  the  results  which 
followed  in  another  age,  as  truly  consequences  of  the  Tudor 
policy  as  the  immediate  results,  but  very  different  in  char- 
acter. 

Nor  is  what  has  been  so  far  said  a  complete  statement  of 
the  constitutional  meaning  of  the  sixteenth  century  in  Eng- 
lish history.  The  economic  and  social  historian  points  out 
also  a  condition  of  things  which  the  historian  of  constitu- 
tional development  is  bound  to  regard.  The  constitutional 
monarchy  of  the  fifteenth  century  was  premature  in  one  way 
because  as  yet  there  was  no  nation  in  the  modern  sense  pre- 
pared by  political  discipline  and  social  advancement  to  work 
'  in  its  own  interests  the  constitutional  machinery  which  had 
been  so  rapidly  built  up  since  the  meeting  of  the  parliament 
in  1295.  The  baronage  was  the  controlling  power  in  Eng- 
lish political  life  during  the  long  reign  of  Henry  VI,  and 
the  baronage  of  the  fifteenth  century  was  far  more  inter- 
ested in  its  own  factious  ambitions  than  in  parliament  or 
nation.  From  1455  to  1485  the  great  fact  in  English  his- 
tory seems  on  the  surface  to  be  the  wars  of  the  Roses ;  but 
that  was  a  war  of  the  baronage,  not  of  the  people,  and  in 
spite  of  continuous  civil  war  the  economic  and  social  develop- 
ment of  the  country  at  large  was  going  rapidly  forward.  It 
needed  the  strong  absolutism  of  the  Tudors  to  bring  the 
nobles  and  their  private  armies  into  subjection  to  the  law 
and  reestablish  an  orderly  public  life. 

The  heaviest  burden  of  this  task  of  reconstructing  the 
power  and  efficiency  of  the  central  government  fell  to  the  first 
Tudor  sovereign,  Henry  VII.     Not  the  least  part  of  this 


CREATIVE  WORK  OF  THE  AGE  247 

task  was  to  determine  the  wa}r  in  which  it  should  be  done,  the 
instruments  which  should  be  used,  and  to  carry  out  the 
institutional  changes  which  might  be  necessary.  In  both 
regards,  constitutionally,  in  the  general  character  and  aspect 
of  the  government,  and  institutionally,  in  the  details  of 
machinery  by  which  the  government  was  operated,  the  char- 
acter of  the  Tudor  age  was  largely  determined  by  Henry 
VII.  It  was  as  creative  work  in  its  way  as  that  which  went 
on  in  the  reign  of  Edward  I,  or  Edward  III,  though  it 
touched  less  nearly  the  foundations  of  government.  To  be 
sure  the  way  had  been  pointed  out  by  Echvard  IV,  in  the  use 
of  the  king's  council,  in  pushing  parliament  into  the  back- 
ground, in  attacking  the  older  and  stronger  nobility,  in  the 
encouragement  of  commerce  and  economic  development,  and 
in  some  details  of  financial  measures.  But  no  Yorkist  king 
had  been  able  to  carry  his  policy  far  enough  to  demonstrate 
its  final  success  or  to  combine  all  his  measures  into  a  coopera- 
tive whole.  Even  where  Henry  VII  may  be  said  to  have  fol- 
lowed most  closely  the  Yorkist  model,  he  gave  to  his  work 
a  more  permanent  and  constitutional  cast,  and  in  some  par- 
ticulars came  nearer  than  any  other  king  had  done  to  giving 
constitutional  body  to  an  absolute  monarchy. 

The  first  serious  problem  of  domestic  government  which 
Henry  had  to  solve  was  the  repression  of  disorder,  the  pun- 
ishment of  crime,  and  the  restoration  of  the  authority  of 
the  national  courts.  At  times  during  the  war  of  the  Roses 
almost  unbridled  private  war  had  prevailed.  The  practice 
of  forming  private  armed  forces  by  using  the  livery  of  a 
noble  house  as  a  kind  of  uniform,  and  of  overawing  the  courts 
when  they  attempted  to  punish  the  lawless  acts  of  these  re- 
tainers, called  the  practice  of  livery  and  maintenance,  had 
been  complained  of  by  parliament  for  a  hundred  years  and 
legislated  against  at  least  by  ordinance,  and  even  special 
authority  had  been  given  the  council  to  try  these  offenders. 
Now,  as  one  of  the  first  domestic  measures  of  the  reign,  the 
matter  was  taken  up  with  determination.     A  special  com- 


248  THE  TUDOR  STRONG  MONARCHY 

mittcc  of  the  council,  which  is  known  to  history  as  the  court 
of  star  chamber  though  strictly  the  name  was  older,  was 
appointed  by  act  of  parliament  in  1487, l  to  deal  with  these 
and  other  similar  cases  where  the  offender  was  too  powerful 
for  the  ordinary  courts.  The  actual  measures  adopted  were 
not  so  new  as  the  vigorous  spirit  in  which  they  were  en- 
forced. 

As  we  have  seen,  no  change  which  had  taken  place  in  the 
council,  no  development  of  its  advisory  function,  no  broad- 
ening of  its  power  in  supervising  the  general  administration, 
no  differentiation  which  had  thrown  off  the  common  law 
and  equity  courts  as  judicial  bodies  or  the  exchequer  and 
chancery  as  administrative  bodies,  had  diminished  its  su- 
preme judicial  power  as  the  organ  of  the  king's  prerogative 
justice.  There  had  been  complaint  of  the  way  in  which  it 
had  been  used ;  application  to  it  had  sometimes  declined ; 
but  the  rightful  power  had  never  been  curtailed.  It  was 
especially  to  exercise  this  power  of  the  council  in  criminal 
cases  that  the  new  committee  was  appointed.  There  was 
no  extension  of  the  council's  jurisdiction  in  the  act,  nor 
really  an  enlargement  of  the  council,  though  the  two  chief 
justices  were  added  to  the  committee,  and  oftentimes  during 
the  sixteenth  century  the  court  of  star  chamber  was  really 
the  council  acting  in  a  special  capacity.  In  reality  there 
was  beginning  a  new  differentiation  from  the  council,  carry- 
ing its  criminal  jurisdiction  over  to  a  new  court,  but  differing 
from  earlier  differentiations  in  that  it  had  the  sanction  of 
an  act  of  parliament  and  in  that  it  was  never  completed. 

The  special  characteristic  of  the  court  of  star  chamber, 
which  made  it  useful  in  the  repression  of  disorders  of  power- 
ful men  and  for  a  long  time  popular,  was  that  it  was  a  court 
of  prerogative  justice.  As  such  the  council  had  never 
adopted  the  common  law  procedure,  and  it  was  not  bound 
to  maintain  the  safeguards  by  which  the  common  law  was 
i  A.   and   S.,  214-215,  216-218. 


POWER  OF  THE  COUNCIL  249 

already  trying  to  protect  the  accused  man  from  injustice  in 
his  trial.  It  had  no  jury;  it  could  force  the  accused  to 
testify  on  oath ;  and  it  could  use  torture  in  examination. 
For  these  reasons  it  has  been  called  a  court  of  criminal  equity, 
and  rightly  so.  It  secured  for  the  time  being  at  least 
justice  which  could  not  be  otherwise  obtained,  for  the  fact 
that  it  exercised  directly  the  king's  prerogative  fitted  it  to 
deal  with  the  man  who  defied  the  ordinary  courts.  It  was 
a  serious  matter  to  defy  the  king.  It  is  evident,  however, 
that  it  contained  the  possibility  of  becoming  a  very  effective 
engine  of  an  arbitrary  t}rranny,  and  such  in  the  end  it  did 
come  near  to  being.  For  nearly  a  century  it  served  a  use- 
ful purpose  and,  when  the  time  of  a  more  deliberate  absolu- 
tism came,  its  existence  saved  the  king  from  the  temptation 
to  make  over  the  courts  of  common  law  into  instruments  of 
his  power. 

The  council  itself  during  the  Tudor  age,  while  less  inde- 
pendent than  it  had  sometimes  been  in  the  fifteenth  century, 
possessed  an  authority  and  power  in  the  every-day  business 
of  government  never  before  equalled.  In  this  sense  the 
Tudor  was  the  great  age  of  the  council's  business,  when  its 
position,  not  in  the  determination  of  the  larger  concerns  of 
policy  but  in  the  management  of  the  details  of  government, 
was  not  unlike  that  of  its  youngest  off-shoot  —  the  modern 
cabinet.  The  term  privy  council  which  had  been  for  a  long 
time  in  occasional  use,  often  as  a  term  of  reproach,  tends  to 
become  a  regular  designation  and  to  be  appropriated  par- 
ticularly to  that  form  of  the  council,  which,  before  the  middle 
of  the  period,  was  in  regular  attendance  upon  the  king  and 
occupied  rather  with  governmental  than  judicial  business 
which  fell  in  the  main  to  the  council  in  the  star  chamber. 
Yet  the  distinction  between  these  two  forms  of  the  council 
was  more  that  of  emphasis  upon  particular  functions  than 
any  hard  and  fast  line  that  could  be  drawn  between  them  — 
a  sure  sign  that  the  differentiation  beginning  was  a  naturaj 


250  THE  TUDOR  STRONG  MONARCHY 

one.  The  privy  council  retains  all  the  characteristics  of  the 
old  small  council,  while  the  star  chamber  represents  a  special 
function  being  slowly  thrown  off  to  a  special  body. 

The  council  in  the  past  had  done  much  of  its  work  through 
committees  or  commissions,  and  under  the  Tudors  the  court 
of  star  chamber  was  not  the  only  one  set  up  or  revived. 
The  court  of  requests  was  especially  for  the  cases  of  poor 
men ;  the  court  of  augmentations  and  that  of  first  fruits 
and  tenths  were  formed  after  the  breach  with  Rome,  to 
deal  respectively  with  lands  and  with  revenues  which  had 
fallen  to  the  king  from  the  church  ;  the  court  of  wards  looked 
after  all  the  cases,  mostly  feudal,  in  which  the  king  had  the 
right  of  wardship ;  the  councils  of  Wales  and  of  the  north 
were  to  exercise  the  king's  authority  and  keep  order  on  the 
borders,  and  there  were  other  branches  of  the  council  in 
Calais  and  Ireland.  The  court  of  high  commission  will  be 
considered  later.  All  these  were  offshoots  of  the  council  or 
under  its  direct  supervision,  and  more  temporary  commis- 
sions might  be  sent  to  any  county  or  be  appointed  to  in- 
vestigate any  happening.  Oftentimes  on  very  great  matters 
the  king  seems  to  have  acted  without  formally  consulting 
his  council,  but  nothing  was  too  small  for  their  attention. 

While  the  old  connection  between  the  king's  official  house- 
hold and  the  council  still  continued,  there  began  in  this  age 
a  new  official  connection  with  the  council  which  is  distinctly 
modern.  Certain  of  the  older  offices  had  become  modernized 
and  certain  new  offices  had  been  created  to  take  care  of 
increasing  business.  The  lord  chancellor  was  still  the  high- 
est of  the  council  in  rank,  but  he  was  now  less  a  political 
minister  of  the  crown  than  he  had  been  and  more  a  judicial 
officer.  The  lord  keeper  of  the  great  seal  sometimes  took 
his  place,  made  equal  to  the  chancellor  in  powers  and  juris- 
diction by  statute  under  Elizabeth.  The  lord  treasurer  was 
then  the  real  head  of  national  finance.  The  lord  president 
of  the  privy  council  was  a  new  office,  not  always  filled.  The 
lord  privy  seal  had  charge  of  that  instrument,  now  as  im- 


OFFICE  OF  KING'S  SECRETARY  251 

portant  in  the  details  of  government  as  the  great  seal.  Most 
significant  for  the  future  was  the  new  office  of  king's  secre- 
tary, or  secretary  of  state  as  it  began  to  be  called.  For 
its  remote  origin  the  office  goes  back  to  a  king's  clerk  of  the 
thirteenth  century,  but  it  is  in  the  fifteenth  that  it  becomes 
of  greater  significance,  and  in  the  sixteenth  definitely  the 
original  from  which  the  modern  offices  bearing  that  title 
have  been  derived.  The  secretary  was  often  a  man  of  great 
influence  and  ability,  like  Thomas  Cromwell  and  Lord  Burgh- 
ley  ;  he  stood  close  to  the  person  of  the  king  and  was  his 
channel  of  communication  with  other  officers  and  with 
foreign  countries ;  he  often  represented  the  king  in  one  house 
or  the  other  of  parliament,  and  had  supervision  of  a  great 
variety  of  interests,  as  indicated  by  the  five  modern  offices 
into  which  the  sixteenth  century  secretaryship  has  been 
separated.  Often  the  pressure  of  business  was  so  great  that 
there  were  two  secretaries  appointed. 

There  was  no  definite  cabinet  in  the  Tudor  period,  and 
the  sovereign  decided  without  outside  influence  with  what 
persons  he  would  consult,  changing  often  with  time  or  sub- 
ject and  often  from  personal  caprice,  yet  all  the  processes  of 
government  were  gradually  assuming  a  more  modern 
aspect.  So  it  was  also  of  the  connection  between  council 
and  parliament.  Parliament  did  not  influence,  and  had  no 
means  of  influencing,  either  the  membership  or  the  policy 
of  the  council.  Rut  the  members  of  the  council  were  mem- 
bers of  one  house  or  the  other,  and  had  a  controlling  influ- 
ence upon  the  decisions  of  parliament,  to  which  at  certain 
periods  they  gave  great  attention. 

The  relation  between  the  council  and  parliament  may  be 
illustrated  by  legislation  of  great  importance  in  the  constitu- 
tional history  of  Ireland  and  of  considerable  interest  in 
more  recent  controversies.  In  1495  the  Irish  parliament 
passed  a  statute  one  provision  of  which  was  that  no  parlia- 
ment should  meet  in  Ireland  until  the  king  and  his  council 
had  approved  of  the  meeting  and  of  the  acts  which  were  to 


252  THE  TUDOR  STRONG  MONARCHY 


be  passed.2  This  statute,  known  as  Poynings'  law,  came 
later  to  interfere  very  seriously  with  the  liberty  of  the  Irish 
parliament,  but  at  the  time  of  its  adoption  it  enacted  nothing 
which  was  not  also  true  of  England.  No  English  parlia- 
ment could  meet  without  the  approval  of  the  king  and  his 
council,  and  when  it  met  it  still  had  no  initiative,  at  least 
before  the  very  end  of  the  pe'riod,  and  passed  only  what  would 
be  called  today  government  bills. 

Based  upon  the  original  legislative  right  of  the  council, 
a  considerable  extension  took  place  in  the  sixteenth  century, 
not  of  the  principle  but  of  the  frequency  of  royal  proclama- 
tions. It  was  probably  the  difficulty  of  bringing  disorder 
to  an  end  in  the  first  part  of  the  period,  and  later  the  neces- 
sity of  defining  newT  offences  and  providing  for  their  punish- 
ment which  came  with  the  reformation  legislation,  that  en- 
couraged recourse  to  a  quick  and  peremptory  method  of 
making  regulations  to  be  enforced  by  the  summary  procedure 
of  the  council.  In  1539  an  act  of  parliament  declared  that 
ro3'al  proclamations  should  be  obeyed  and  observed  "  as 
though  they  were  made  by  act  of  parliament,"  though  they 
might  not  infringe  any  act,  common  laws  or  lawful  customs 
of  the  realm.  It  also  created  a  form  of  .council  court  to  try 
those  who  disobeyed  them.3  The  act  was  probably  declara- 
tory rather  than  creative.  It  seems  to  have  been  followed 
by  no  change  in  the  subject  or  character  of  proclamations 
and  was  repealed  in  1547.  This  revival  of  council  legisla- 
tion, like  other  matters  under  the  Tudors,  which  look  like 
extensions  of  the  royal  power,  met  apparently  with  general 
approval,  but  the  precedents  established  had  a  different 
meaning  in  another  age. 

It  is  easy  for  us  to  see  the  inc*reased  prominence  of  the 
council  as  an  instrument  of  government  in  the  sixteenth 
century.  It  is  not  so  easy  to  see  in  the  events  of  the  time 
the  fortification  and  improvement  of  the  position  of  parlia- 

2  Robertson,  Statutes,  205. 
a  A.   and   S.,   247-250. 


INFREQUENT  MEETINGS  253 

ment.  The  evidence  which  we  occasionally  find  of  a  deter- 
mined effort  of  the  government  to  make  sure  of  a  subservient 
parliament  obscures  the  constitutional  importance  of  even 
the  most  subservient  parliament.  It  seems  to  us  that  a  legis- 
lature so  controlled  must  end  by  becoming  nothing  but  a  tool 
of  the  executive.  The  key  to  the  difficulty  is  to  be  found 
in  the  motive  of  the  king  in  obtaining  the  control  and  the 
character  of  the  objects  which  he  sought. 

Parliament  did  not  meet  so  often  in  the  Tudor  age  as  in 
the  fourteenth  century.  Heni^  VII  in  twenty-four  years 
held  but  seven  parliaments,  only  one  in  the  last  half  of  his 
reign;  Elizabeth  in  forty-five  years  summoned  ten.  Yet  it 
can  hardly  be  said  that  the  Tudors  deliberately  kept  parlia- 
ment from  meeting  because  of  its  power.  At  most  they 
found  it  an  inconvenient  instrument  and  were  glad  to  do 
without  it  when  it  was  not  necessary.  But  often  it  was  in- 
dispensable for  their  policy  and,  when  it  was  most  indis- 
pensable, they  took  some  pains  to  secure  the  kind  of  parlia- 
ment they  needed. 

The  house  of  lords  never  recovered  the  relative  importance 
in  parliament  which  it  lost  during  the  fourteenth  century, 
but  it  was  still  not  inferior  to  the  house  of  commons  in  power, 
and  the  control  which  it  could  exert  over  the  members  of 
the  lower  house  through  social  influence  and  personal  con- 
nection was  not  slight.  As  a  house  of  hereditary  members, 
it  should  be  theoretically  independent  of  the  king,  but  it  is 
easy  to  understand  that  it  was  not.  During  most  of  the 
time  to  the  Reformation  parliament  of  1529,  the  clerical 
members,  bishops  and  abbots,  were  in  the  majority,  and  they 
owed  their  offices  and  their  chance  of  promotion  and  of  other 
favors  to  the  king.  The  majority  of  them  voted  for  Henry 
VIII's  measures  against  the  papal  power.  The  lay  nobility 
had  been  weakened  by  the  war  of  the  Roses  but  not  so  nearly 
destroyed  as  has  sometimes  been  said.  Henry  VII's  first 
parliament  contained  twent3r-nine  lay  peers,  which  is  not 
greatly  below  the  average  number  of  that  -century.     It  sank 


254  THE  TUDOR  STRONG  MONARCHY 

once  in  Henry  VI's  reign  to  twenty-three,  hardly  ever  rose 
above  fifty,  and  in  the  sixteenth  century  only  once  reached 
sixty.  Though  many  new  families  were  given  titles  during 
the  period,  peerages  continued  to  become  extinct  almost  as 
rapidly  as  during  the  war  of  the  Roses.  It  was  the  more  or 
less  constant  policy  of  the  Tudors  to  place  their  chief  de- 
pendence upon  new  families  which  they  raised  in  rank  instead 
of  upon  the  older  nobilit}',  and  many  of  the  families  most 
distinguished  in  later  history,  Cavendish,  Cecil,  Paget,  Rus- 
sell, Seymour,  Spencer,  and  others,  gained  at  least  the  first 
steps  of  their  promotion  in  this  period.  In  no  part  of  the 
age  did  the  house  of  lords  furnish  leadership  to  anj^thing 
like  the  old  traditional  opposition  to  the  crown. 

In  regard  to  the  house  of  commons  it  is  necessary  first  of 
all  to  fix  in  mind  the  fact  that  the  class  represented  by  its 
members  was  still  a  narrow  one  —  reaching  not  at  any  time 
below  what  we  should  call  the  upper  middle  class.  Boroughs 
sent  knights  and  esquires  as  their  representatives,  as  often  as 
they  sent  burgesses,  and  there  is  no  evidence  that,  either  in 
the  character  or  the  chief  interests  of  the  membership,  there 
Avas  any  difference  between  boroughs  and  counties.  And  in 
reality  it  may  be  said  with  truth  that  it  was  the  chief  inter- 
ests of  the  membership  which  determined  the  policy  of  the 
commons,  rather  than  the  special  desires  of  the  sovereign. 
It  is  also  true,  however,  that  the  two  were  often  identical  and 
as  often  easily  made  to  seem  identical. 

The  Tudor  age  was  one  of  great  economic  advance,  and 
the  economic  interest  was  at  the  bottom  the  chief  inter- 
est of  the  membership  of  the  house  of  commons.  A  wide- 
spread change  was  taking  place  in  agriculture,  caused  by 
the  increasing  profits  in  wool  raising,  and  was  transforming 
arable  land  into  pasture,  by  which  the  class  represented 
in  the  house  was  greatly  affected  and  saw  its  advantage, 
whatever  may  have  been  the  effect  upon  the  laboring  class.4 
Foreign  commerce  was  developing  rapidly  and  occupying 
*Cheyney,  Headings,  353-354. 


ECONOMIC  ADVANCE  255 

more  and  more  the  attention  of  the  trading  towns.  The 
great  companies  of  merchant  adventurers  were  beginning  to 
be  formed,  commercial  treaties  were  breaking  down  barriers 
against  commerce,  navigation  acts  were  developing  English 
shipping  and  ship-building,5  bounties,  monopolies,  and  tariffs 
encouraged  national  industries,  interest  was  increasing  in  the 
exploration  of  new  routes  of  trade,  and  before  the  close  of 
the  period  England  was  looking  forward  to  the  founding  of 
colonies,  for  trade  at  least,  and  was  definitely  cherishing  the 
vision  of  a  great  future  on  the  sea.  The  real  heart  of  the 
middle  class  was  in  these  things,  and  the  constitutional  bear- 
ing of  the  fact  is  to  be  emphasized.  Never  was  there  an 
age  when  the  taunt  sometimes  heard,  that  the  Anglo-Saxon 
will  contentedly  endure  any  kind  of  government  that  gives 
him  security  of  trade,  came  nearer  to  justification. 

There  is  some  further  reason  for  the  support  of  a  strong 
government  to  be  added.  During  the  first  part  of  the  period 
the  destructive  civil  war  of  the  Roses  was  fresh  in  mind. 
The  nation  wanted  no  more  of  it.  The  dangers  of  a  disputed 
succession  and  of  a  weak  government  must  be  averted. 
During  the  last  half  of  the  century  the  dangers  of  foreign 
invasion  and  of  insurrection  from  religious  discontent  were 
equally  great.  A  strong  government  was  certain  to  rally  to 
its  support  all  those  classes  in  the  country  which  had  a  share 
in  deciding  what  the  national  policy  -should  be  and  those 
whose  chief  desire  was  securit}'.  If  the  government  was 
strong  enough  to  protect  commerce  abroad  and  to  maintain 
order  and  independence  at  home,  it  might  have  and  do  almost 
anything  that  it  wanted.  Almost,  not  quite.  It  must  not 
be  understood  that  in  every  particular  the  Tudor  sovereigns 
had  their  way.  They  sometimes  met  with  opposition  which 
they  could  not  overcome  and  were  obliged  to  withdraw  or 
modify  their  measures.  In  their  great  measures  of  policy, 
however,  they  had  their  way,  and  in  almost  all  these  measures 
parliament  apparently  supported  the  king  because  the  classes 
6  A.  and  S..  213-214;  cf.  p.  144. 


256  THE  TUDOR  STRONG  MONARCHY 

which  formed  parliament  wished,  or  were  at  least  willing,  to 
carry  out  the  policy  which  the  king  desired. 

Occasionally,  either  to  make  sure  that  the  policy  of  the 
sovereign  or  of  his  ministers  could  be  carried  out,  under 
Henry  VIII,  Edward  VI,  and  Mary  at  least,  deliberate  efforts 
were  made  to  secure  a  house  of  commons  that  could  be 
counted  upon.  This  was  done  by  making  use  of  the  sheriffs 
as  in  the  fifteenth  century,  by  influence  upon  individual  con- 
stituencies or  individual  members,  and  by  one  measure  which 
had  a  permanent  effect  upon  the  composition  and  finally  upon 
the  character  of  the  house — the  creation  of  new  boroughs. 
In  the  short  reign  of  Edward  VI  forty-eight  members  were 
added  to  the  house  of  commons,  twenty-two  for  a  single  elec- 
tion ;  under  Mary  twenty-one,  and  under  Elizabeth  sixty 
or  more.  A  large  proportion  of  the  new  boroughs  were  in 
Cornwall,  which  was  almost  entirely  owned  by  the  crown, 
and  many  of  them  became  in  later  times  the  pocket  or  rotten 
boroughs  of  the  unreformed  house.  It  was  not  possible  in 
this  way,  however,  to  obtain  a  certain  or  permanent  control. 
In  the  next  century  Sir  John  Eliot  and  John  Hampden  rep- 
resented Cornish  constituencies,  and  in  the  other  house  the 
family  of  Russell  made  itself  famous  for  its  liberal  leader- 
ship. 

Of  the  greater  measures  of  the  Tudors,  two  of  Henry 
VIII's  are  especially  noteworthy  as  both  illustrating  and 
strengthening  the  position  of  parliament — the  regulation  of 
the  succession,  and  the  breach  with  Rome.  A  disturbed  suc- 
cession had  been  characteristic  of  the  last  half  of  the  fifteenth 
century,  and  parliament  had  been  called  upon  more  than 
once  to  determine  the  line  to  be  followed,  but  the  hold  of 
Henry  VIII  upon  the  throne  and  upon  the  nation  was  so 
great  that  no  questions  to  disturb  the  future  arose  until  he 
created  them  himself  by  his  matrimonial  complications.  Be- 
fore the  close  of  his  reign  the  situation  was  such  as  to  compel 
a  recognition,  by  logical  inference  at  least,  more  complete 
than  ever  before,  of  the  supreme  authority  of  parliament  to 


PARLIAMENT  STRENGTHENED  257 

determine  the  succession,  for  it  was  not  possible  that,  outside 
of  statute  law,  both  Mary  and  Elizabeth  should  be  at  the 
same  time  legitimate.  Eirst  Mary  was  declared  by  parlia- 
ment illegitimate  and  the  succession  settled  upon  Elizabeth.6 
Then  Elizabeth  was  declared  illegitimate  and  the  crown  en- 
tailed upon  the  offspring  of  Henry  and  Jane  Seymour.  By 
this  act  also  authority  was  given  to  Henry  to  limit  the  suc- 
cession after  himself,  by  letters  patent  or  by  his  last  will,  to 
such  persons  as  he  chose,  no  exception  being  specified  —  a 
plain  delegation  of  authorit}7  to  the  king,  which  logically 
he  acknowledged  that  he  did  not  otherwise  possess.  By 
virtue  of  this  authority  Mary  and  Elizabeth  were  restored 
to  the  succession  after  all  the  other  descendants  of  Henry 
VIII  and  after  them  the  line  of  his  younger  sister  Mary 
preferred  to  that  of  his  elder  sister  Margaret,  who  had  been 
married  to  the  King  of  Scotland,  and  this  disposition  received 
again  parliamentary  sanction.  That  it  was  not  carried  out 
on  the  death  of  Elizabeth  shows  less  the  weakness  of  statute 
law  than  the  superior  power  of  what  we  may  already  begin 
to  call  public  opinion. 

The  breach  with  Rome  involved  a  recognition  of  parlia- 
mentary authority,  perhaps  logically  less  complete,  but  more 
striking  and  immediately  felt,  because  it  broke  off  the  whole 
current  of  English  history  down  to  that  date  and  involved 
interests  very  near  to  the  mass  of  men.  It  is  not  the  place 
here  to  discuss  the  reasons  for  the  steps  taken  nor  the  ques- 
tion of  their  justification.  To  believe  them  unwarranted, 
is  to  recognize  most  fully  the  power  of  parliament  in  carry- 
ing them  through. 

Whether  Henry's  desire  to  have  his  marriage  with  Cath- 
erine annulled  arose  from  personal  reasons  only  or  in  part 
from  motives  of  genuine  statesmanship,  matters  had  gone  so 
far  by  the  time  the  pope's  refusal  to  agree  became  evident; 
that  Henry  was  determined  to  go  through  with  his  purpose 
at  any  cost.     To  do  this  in  such  a  way  that  the  result  should 

6  A.  and  S.,  235-239,  264-267. 


258  THE  TUDOR  STRONG  MONARCHY 

be  unimpeachable  in  English  law  required  three  things:  the 
authority  of  the  pope  over  the  English  church  must  be  set 
aside  and  the  king  put  in  his  place;  all  appeals  from  English 
courts  to  Rome  must  be  made  illegal;  and  all  subjects  must 
be  bound  by  oath  to  recognize  the  results.  These  measures 
were  adopted,  gradually  and  not  in  the  order  stated,  by  the 
parliament  which  met  first  in  November,  1529,  and  continued 
until  April,  1536,  holding  seven  sessions.  These  measures 
were  necessarily  accompanied  or  followed  by  others,  many  of 
them  financial  in  character,  and  together  they  brought  about 
a  change  in  English  law,  practical  government  and  formal 
constitution  equivalent  to  a  revolution.7  They  illustrate  the 
extent  to  which  the  recognized  power  of  parliament  could  go, 
and  their  effect  was  to  establish  the  complete  authority  of 
parliament  over  the  constitution  and  the  practical  govern- 
ment of  the  church.  This  supremacy  of  parliament  is  illus- 
trated and  acted  upon  in  the  act  of  supremacy,  which  put  the 
king  in  place  of  the  pope  as  head  of  the  church,  more  fully 
than  in  any  other  one  act.8 

An  incidental  result  of  importance  followed  from  this 
legislation.  Henry  VIII  had  not  intended  to  make  changes 
in  doctrine  or  religion,  but  he  had  put  the  English  church 
in  a  position  in  which  it  could  not  remain  stationary.  In 
the  next  reign  the  drift  towards  protestantism  was  very 
strong,  with  the  result  that  a  new  declaration  of  doctrine  and 
a  new  prayer  book  were  framed,  and  these  were  made  obliga- 
tory in  all  religious  service  by  the  act  of  uniformity,  renewed 
by  Elizabeth  in  1559  in  undoing  Mary's  restoration  of 
Catholicism.9  But  on  one  side  probably  less  than  half  of 
England  was  protcstant,  and  on  the  other  a  good  part  of 
England  believed  it  necessary  to  go  in  that  direction  con- 
siderably farther  than  parliament  was  willing  to  go.  Uni- 
formity of  religious  faith  and  worship  could  be  preserved  only 

7  A.  and  S.,  226-235;  Cheyney,  Readings,  340-346. 

8  A.   and  S.,  239-240. 

6A,   and   S.,   253-259,  272-281. 


FINANCIAL  METHODS  OF  THE  TUDORS      259 

by  pains  and  penalties,  and  to  enforce  these  a  new  court 
was  set  up,  the  ecclesiastical  court  of  high  commission,  given 
its  historical  form  and  authority  under  Elizabeth.10  In  func- 
tion this  court  was  really  an  offshoot  of  the  council,  though 
it  had  many  members  not  belonging  to  the  council,  and  like 
that  body  its  procedure  was  free  from  the  restraints  of  the 
common  law  and  inquisitorial  in  character,  though  it  could 
not  make  use  of  torture  or  sentence  to  death.  Like  the  coun- 
cil it  was  a  court  of  prerogative  powers,  enforcing  the 
authority  of  the  sovereign  as  head  of  the  church.  As  an 
instrument  of  arbitrary  government  dangerous  to  liberty  its 
history  belongs  chiefly  to  the  next  century. 

In  financial  matters  the  Tudors  sometimes  overstepped  the 
proper  limits  of  the  constitution,  and  without  much  opposi- 
tion. The  benevolence  had  been  invented  in  the  fifteenth  cen- 
tury n  —  in  theory  and  form  a  free  gift  to  the  government, 
but  in  practice  the  suggestion  of  the  gift  came  from  the  gov- 
ernment and  the  individual  generally  thought  it  best  to  agree. 
These  gifts  were  forbidden  by  parliament  under  Richard  III, 
but  were  exacted  both  by  Henry  VII  and  Henry  VIII.  The 
latter  employed  also  forced  loans,  written  promises  of  repay- 
ment being  given  in  return,  called  "  privy  seals  "  because 
sealed  with  that  seal.  At  times  these  methods  of  raising 
money  threatened  to  develop  into  something  like  regular 
taxation  with  assessments  based  upon  a  valuation  of  prop- 
erty. In  1525  Henry  VIII  attempted  to  levy  a  sixth  from 
laymen  and  a  tenth  from  clergy  without  previous  parlia- 
mentary sanction,  but  the  resistance  was  so  great  in  this 
case  that  the  attempt  had  to  be  abandoned.  In  theory  the 
right  of  parliament  to  decide  upon  taxation  was  recognized, 
and  extra-legal  taxation  was  under  some  form  of  evasion. 

In  local  government  we  may  say  that  the  Tudor  age  is  the 
time  when  the  transition  from  medieval  to  modern  methods 
was  completed.     The  king's  courts  of  the  common  law  had 

10  Prothero,  Documents,  227-24.2. 

11  Cheyney,  Readings,  300;  A.  and  S.,  212. 


200  THE  TUDOR  STRONG  MONARCHY 

continued  their  steady  development  at  the  expense  of  the 
local  and  private  courts,  but  they  had  come  to  be  more  and 
more  exclusively  law  courts,  even  the  itinerant  justice  courts, 
and  to  abandon  more  and  more  their  administrative  duties 
to  other  agencies.  County,  hundred,  and  private  courts, 
though  they  continued  in  possible  use  in  some  particulars 
into  the  nineteenth  century,  had  become  really  insignificant. 
A  clause  in  the  statute  of  Gloucester  (1278)  had  been  inter- 
preted to  deprive  the  county  court  of  jurisdiction  over  cases 
involving  forty  shillings  or  more  of  value,  and  criminal 
cases  had  practically  ceased  to  be  regarded  as  private  causes 
(appeals)  and  were  treated  as  king's  pleas  only.  The 
county  assembly  was  no  longer  summoned  to  meet  the 
itinerant  justices;  and  the  grand  jury  alone  stood  for  the 
county.  The  hundred  still  existed  as  a  territorial  division, 
but  as  a  unit  of  administration  and  jurisdiction  it  survived 
the  period  only  in  the  courts  leet  here  and  there.  It  was  of 
so  little  importance  that,  though  it  was  brought  over  into 
several  American  colonies,  it  was  preserved  in  one  only  — 
Delaware.  Private  jurisdictions,  though  still  possibilities, 
survived  in  practical  use  only  in  some  of  the  leet  courts  and 
in  the  transfer  of  servile  land,  the  copyhold,  but  this  last  use 
required  no  court  session ;  the  entry  on  the  roll  of  the  court 
signifying  the  change  of  ownership  was  as  purely  formal  as 
an  American  record  of  a  land  transfer. 

An  office  which  was  to  play  a  great  part  in  the  local  gov- 
ernment of  the  future  —  the  justice  of  the  peace  —  had  been 
steadily  increasing  in  importance  since  the  thirteenth  century. 
It  grew  out  of  experiments  beginning  near  the  end  of  the 
twelfth  century  to  find  a  satisfactory  local  officer  to  look 
after  the  king's  pleas,  to  see  that  they  were  all  brought 
before  the  justices  and  in  proper  shape  for  trial.  The  first 
experiment,  which  did  not  prove  successful,  gave  us  the  office 
of  coroner,  soon  limited  to  its  present  duties.  The  next 
experiment  was  the  appointment  of  conservators  or  keepers 
of  the  peace,  whose  powers  were  much  extended  under  Edward 


JUSTICES  OF  THE  PEACE  261 

III.  In  I860  they  were  authorized  to  imprison  persons  in- 
dicted before  them  for  felonies,  and  soon  after  they  began 
to  be  called  justices  of  the  peace.12  In  1388  they  were 
directed  to  hold  their  sessions  four  times  a  year  —  the  origin 
of  the  later  "  quarter  sessions."  Gradually  their  duties  were 
enlarged  and  made  administrative  as  well  as  judicial,  to  put 
down  riots,  to  regulate  wages,  to  supervise  weights  and 
measures,  trades  and  industries,  highways,  apprentices,  and 
paupers.  They  were  given  a  police  jurisdiction,  and  so  mul- 
tifarious were  their  duties  that  they  have  been  called  "  the 
Tudor  maid  of  all  work."  As  an  organ  of  the  central 
government  in  all  localities,  they  supply  the  place  of  the 
sheriff  in  his  early  administrative  functions,  for  the  sheriff 
had  now  become  the  executive  officer  of  the  courts,  as  he  still 
is  in  the  United  States.  As  representing  the  medieval 
organization  of  local  government,  they  had  succeeded  to 
many  of  the  activities  of  the  original  town,  of  the  private 
court  whether  domanial  or  franchisal,  and  of  the  ordinary 
hundred  court.  They  had  also  inherited  a  considerable  part 
of  the  local  functions  of  the  itinerant  justices,  and  they 
supervised  and  controlled  the  parish  officers. 

But  just  before  the  Tudor  age  began,  another  new  factor 
in  local  government  had  begun  to  be  active,  or  perhaps  we 
ought  rather  to  say  that  an  old  and  almost  obsolete  institu- 
tion had  awakened  to  new  life  —  the  parish  meeting.  The 
town  assembly  of  original  Saxon  days  had  tended  to  be  ab- 
sorbed into  the  manorial  court  of  feudal  times.  Its  business, 
however,  was  not  in  all  cases  identical  with  manorial  business 
and,  as  the  changing  economic  conditions  of  the  later  middle 
ages,  and  especially  the  rise  of  the  new  agriculture,  of  graz- 
ing and  enclosure,  reduced  the  importance  of  the  manor,  the 
permanent  interests  which  must  be  looked  after  by  local  gov- 
ernment acted  to  revive  something  like  the  old  township  moot. 
But  the  township  had  long  ago  disappeared  as  a  unit  of  real 
political  significance,  and  the  local  unit  which  at  the  moment 
12  A.  and  S.,  127-128,  194-195,  321-3->4;  Prothero,  Documents,  114-150. 


262  THE  TUDOR  STRONG  MONARCHY 

had  an  active  existence,  and  which  often  corresponded  with 
the  township  in  area,  the  parish,  stepped  into  its  place  and 
inherited  its  functions  in  local  government.  The  priest,  as 
the  local  leader  and  guide,  who  would  naturally  be  looked  to 
to  assist  in  the  difficulties  of  a  transitional  time,  had  very 
likely  a  good  deal  to  do  with  securing  this  succession.  At 
an}*  rate  the  parish  meeting,  the -assembly  of  the  parishioners, 
became  the  local  governing  body,  and  one  very  much  like  the 
old  township  assembly,  looking  after  both  the  ecclesiastical 
and  the  secular  interests  of  the  community.  When  towards 
the  end  of  Elizabeth's  reign  the  state  awoke  to  the  duties 
towards  the  poor  which  had  fallen  to  it  from  the  medieval 
church,  it  made  the  parish  the  unit  in  the  administration  of 
the  poor  laws  which  were  passed,  and  -thus  gave  it  legal 
recognition  and  a  permanent  position  in  the  state.  From 
that  time  to  the  present,  the  parish  with  the  parish  meeting, 
or  vestry,  has  had  as  large  a  part  in  the  conduct  of  local 
government  as  the  American  town  meeting,  though  under  a 
supervision  in  some  particulars  by  the  justice  of  the  peace 
which  has  nothing  corresponding  to  it  in  America. 

The  conditions  which  had  given  character  to  the  Tudor 
age  began  to  change  before  the  death  of  Elizabeth.  The 
execution  of  Mary  Stuart  and  the  successful  defence  against 
the  threats  of  Spain  gave  something  of  security  against  both 
domestic  and  foreign  danger,  though  the  nation  was  not  fully 
conscious  of  how  great  a  change  in  these  respects  had  really 
taken  place.  But  parliament  began  towards  the  end  of  the 
century  to  be  somewhat  restless ;  to  show  an  inclination  to 
greater  independence,  and  a  disposition  to  be  more  critical 
of  royal  methods.  We  seem  to  ourselves  to  detect  the  be- 
ginning once  more  of  something  like  an  organized  opposition 
and  a  group  of  men  acting  together,  almost  like  a  modern 
party,  ready  with  a  legislative  programme  not  foreordained 
by  the  council.  There  was,  however,  no  real  interference 
with  Elizabeth's  action  which  can  be  said  to  have  amounted 
to  a  matter  of  principle.     It  was  only  that  all  things  were 


THE  PLACE  OF  PARLIAMENT  263 

ready  for  a  new  age  and,  if  Elizabeth  herself  with  all  her 
political  skill  could  have  continued  to  reign  for  another 
twenty  years,  it  is  not  likely  that  she  could  have  repressed  the 
opposition  that  was  forming.  As  the  history  actually  went, 
it  was  reserved  for  a  new  dynasty  to  raise  for  the  first  time  in 
English  history  a  square  issue  between  two  types  of  monarchy 
and  two  types  of  constitution. 

To  the  final  settlement  of  the  problems  of  that  new  age  the 
great  contribution  of  the  sixteenth  century,  based  upon  the 
earlier  history,  was  the  parliament  and  its  position  in  the 
state.  As  a  contemporary  estimate  of  the  place  of  parlia- 
ment, a  passage  from  Sir  Thomas  Smith's  Commonwealth  of 
England,  published  in  1589,  to  which  special  attention  has 
been  called  by  Professor  Maitland,  may  be  quoted:  "The 
most  high  and  absolute  power  of  the  realm  of  England  con- 
sisteth  in  the  parliament.  .  .  .  That  which  is  done  by  this 
consent  is  called  firm,  stable  and  sanctum,  and  is  taken  for 
law.  The  parliament  abrogateth  old  laws,  maketh  new, 
giveth  order  for  things  past  and  for  things  hereafter  to  be 
followed,  changeth  rights  and  possessions  of  private  men, 
legitimateth  bastards,  establisheth  forms  of  religion,  altereth 
weights  and  measures,  giveth  forms  of  succession  to  the 
crown,  defineth  of  doubtful  rights,  whereof  is  no  law  already 
made,  appointeth  subsidies,  tailes,  taxes,  and  impositions, 
giveth  most  free  pardons  and  absolutions,  restoreth  in  blood 
and  name  as  the  highest  court,  condemneth  or  absolveth  them 
whom  the  prince  will  put  to  that  trial.  And  to  be  short,  all 
that  ever  the  people  of  Rome  might  do  either  in  ccnturiatis 
comitiis  or  tributis,  the  same  may  be  done  by  the  parliament 
of  England  which  representeth  and  hath  the  power  of  the 
whole  realm,  both  the  head  and  body.  For  every  English- 
man is  intended  to  be  there  present,  either  in  person  or  by 
procuration  and  attorneys,  of  what  preeminence,  state,  dig- 
nity or  quality  soever  he  be,  from  the  prince,  be  he  king 
or  queen,  to  the  lowest  person  of  England.  And  the  consent 
of  the  parliament  is  taken  to  be  every  man's  consent." 


264.  THE  TUDOR  STRONG  MONARCHY 

Bibliographical  Note. —  J.  F.  Baldwin,  The  King's  Council, 
1913.  C.  A.  Beard,  The  Justice  of  the  Peace  in  England,  1904. 
W.  Busch,  England  under  the  Tudors,  Vol.  1,  King  Henry  VII, 
1895.  E.  P.  Cheyney,  England  from  the  Armada  to  the  Death 
of  Elizabeth,  Vol.  1,  1914.  J.  N.  Figgis.  The  Theory  of  the  Di- 
vine Right  of  Kings,  1914.  R.  B.  Merriman.  The  Life  and  Let- 
ters of  Thomas  Cromwell,  1902.  Lord  Eustace  Percy,  The  Privy 
Council  under  the  Tudors,  1907.  A.  F.  Pollard,  The  Reign  of 
Henry  VII  from  Contemporary  Sources,  Vol.  II..  1914.  Sir 
Thomas  Smith,  De  Republica  Anglorum,  Ed.  L.  Alston,  1906. 
R.  G.  Usher,  Rise  and  Fall  of  the  High  Commission,  1913. 


CHAPTER  XI 

PARLIAMENT  VERSUS  THE  KING 

James  VI  of  Scotland  began  to  reign  when  a  babe  in  arms 
and  could  never  remember  a  time  when  he  had  not  been  a 
king.  He  was  something  of  a  student  and  he  read,  not 
without  a  natural  inclination  to  believe,  current  philosophical 
arguments  in  favor  of  the  divine  right  of  kings,  and  even 
restated  them  in  a  book  of  his  own  writing.  He  was  the 
king  of  a  poor  country,  but  he  knew  himself  heir  to  the 
English  crown  and  could  look  forward  with  pleasant  antici- 
pation to  its  wealthier  resources  and  to  the  headship  of  a 
liberal  and  aristocratic  church  in  place  of  the  hard  and 
narrow  republicanism  of  the  Scotch  presbvterians.  He 
knew  the  history  of  the  Tudor  monarchy  and  Elizabeth's 
methods  of  rule  and  her  overbearing  ways  of  dealing  with 
individual  opposition.  He  knew  also  that  his  right  to  the 
throne  was  shadowed  by  the  provision  for  the  succession 
which  Henry  VIII  had  made  under  the  authority  of  parlia- 
ment, by  which  his  own  elder  line  had  been  postponed  in 
the  inheritance  to  the  younger  line  of  the  descendants  of 
Henry  VII.  But  he  knew  too,  when  he  came  to  the  throne 
with  the  sanction  of  the  nation  in  the  teeth  of  this  arrange- 
ment, that  the  principle  of  succession  by  direct  descent,  the 
principle  of  divine  right,  had  made  no  small  gain  over  the 
principle  of  parliamentary  authority.  It  is  not  at  all 
strange  that  James  became  king  of  England  with  the  deter- 
mination to  go  on  with  the  practical  absolutism  which  the 
Tudors  had  exercised  and  indeed  with  clearer  theoretical 
ideas  than  they  had  had  of  monarchy  as  the  natural  govern- 
ment intended  for  mankind  and  of  his  own  right  as  the 
particular  monarch  divinely  selected. 

Over  against  the  determination  of  the  king  was  the  deter- 

265 


266  PARLIAMENT  VERSUS  THE  KING 

mination  which  had  been  slowly  growing  in  parliament  for 
some  years.  It  would  probably  be  going  too  far  to  say 
that  this  was  a  conscious  determination  that  the  absolutism 
of  the  Tudors  should  come  to  an  end.  It  was  rather  a  deter- 
mination that  the  king  should  be  held  to  the  law  where  law 
existed.  The  particular  events  in  which  this  determination 
of  parliament  expressed  itself  were  so  entirely  shaped  by  the 
action  of  the  king,  parliament  came  so  slowly,  as  the  years 
of  the  seventeenth  century  went  on,  to  an  understanding  of 
what  its  opposition  meant  as  an  interpretation  of  the  con- 
stitution and  an  assertion  of  the  position  of  parliament  in 
the  state,  that  it  is  hardly  possible  to  say  that  it  began 
the  conflict  with  the  crown  with  any  definite  plan,  or  any 
foresight  of  the  result  for  which  it  ought  to  strive.  The 
practical  situation  created  was,  however,  the  same  as  if  it 
had  been  designed.  A  square  issue  was  joined  between  a 
king  determined  to  go  on  with  a  virtual  absolutism  and  a 
parliament  determined  that  the  king  should  be  limited  by  the 
law. 

This  issue  had  never  before  been  joined  in  English  history. 
Since  the  working  out  of  the  limited  monarchy  and  the  estab- 
lishment of  its  principles  in  1399,  these  two  interpretations 
of  the  constitution  had  never  entered  the  field  together. 
Each  in  turn  had  had  possession  for  a  long  period,  and  gov- 
ernment had  been  carried  on  according  to  it  with  no  serious 
interruption  from  the  other.  The  Lancastrian  period  was 
in  fundamental  principles,  though  these  had  not  been  worked 
out  in  all  details,  an  age  of  constitutional  monarchy.  The 
Yorkist  and  Tudor  periods  formed  an  age  of  practical  ab- 
solutism, though  an  absolutism  winch  for  its  own  convenience 
made  use  of  some  of  the  machinery  of  a  constitutional  mon- 
archy and  in  so  doing  strengthened  and  confirmed  it.  In 
this  most  important  respect,  the  joining  of  issues  between  a 
traditionally  strong  royal  power  and  a  parliament  strong 
in  accumulated  rights  and  privileges,  the  accession  of  James  I 
opened  a  new  epoch  in  the  history  of  England. 


THE  QUESTION  OF  FINAL  AUTHORITY      267 

The  great  practical  question  to  be  solved  was :  Would  it 
be  possible  to  make  these  two  conceptions  of  government 
work  peaceably  together?  Would  it  be  possible  in  practice 
to  mark  off  a  boundary  line  between  the  king's  prerogative 
action  and  those  things  in  which  he  must  allow  parliament 
to  be  supreme?  Was  any  compromise  between  these  two 
powers  in  the  state  possible?  Was  not  the  real  question 
which  was  involved  in  the  rivalry  between  them  the  question 
of  the  ultimate  political  authority  in  the  state  of  which 
there  could  be  in  the  nature  of  the  case  but  one?  Some- 
where in  every  state  there  must  reside  a  power  of  making 
decisions  from  which  there  can  be  no  appeal ;  a  final  author- 
ity to  which  in  the  last  stage  of  discussion  every  great 
question  must  be  referred  and  whose  answer  will  at  once  be 
seen  to  end  all  controversy.  This  ultimate  authority  in  any 
state  is  the  sovereign  authority  whether  it  be  a  sovereign 
monarch  or  a  sovereign  people,  and  the  question  where  does 
sovereignty  reside  in  any  given  state  is  the  question  where  is 
to  be  found  the  power  of  making  decisions  which  we  know 
no  other  power  can  call  in  question.  In  the  conflict  between 
the  king  and  parliament  in  the  seventeenth  century  in  Eng- 
land this  was  the  question  really  at  issue  and  really  decided. 
Growing  slowly  more  and  more  clear  through  the  cloud  of 
special  issues,  forced  by  progressive  dispute  and  argument 
more  and  more  definitely  into  the  foreground,  the  great  ques- 
tion, where  does  political  sovereignty  reside  in  the  English 
state,  what  is  the  ultimate  source  of  all  authority,  though  it 
was  never  distinctly  formulated  nor  answered  in  specific 
words,  was  in  the  end  really  answered  by  the  facts,  by  the 
actual  situation  left  as  the  result  of  the  struggle. 

The  joining  and  the  settlement  of  this  issue  make  the 
seventeenth  century  like  the  fourteenth  century  a  great 
creative  age  in  English  constitutional  history,  creative  not 
of  institutions  nor  of  constitutional  procedure,  but  of  mean- 
ing and  interpretation  fixed  beyond  future  question.  If 
we   say  that   by   1399   the  English  constitution  had   been 


268  PARLIAMENT  VERSUS  THE  KING 

brought  into  existence  so  far  as  its  fundamental  principles 
are  concerned,  we  have  by  no  means  said  that  the  work  of 
making  the  constitution  was  completed.  There  was  much 
of  a  creative  sort  still  to  be  done.  Most  important  work 
still  remained  in  seeing  that  these  principles  were  consistently 
carried  out  in  all  the  details  of  government.  The  impor- 
tance of  this  work  may  be  seen  in  saying  that  it  was  especially 
to  be  done  in  the  control  of  national  finance,  in  making 
the  judiciary  independent  of  executive  interference,  and  in 
the  directing  of  foreign  policy — this  last  an  item  in  which 
the  work  is  perhaps  not  yet  complete.  Much  had  still  to  be 
done  in  devising  machinery  for  the  operation  of  practical 
government  according  to  these  principles,  and  this  in  its 
chief  instance  has  given  us  the  English  system  of  government 
by  a  cabinet  of  responsible  ministers.  And  perhaps  most 
broadly  fundamental  of  all,  much  had  still  to  be  done  in 
ascertaining  what  these  principles  logically  implied  as  to  the 
nature  of  government,  the  source  of  its  powers,  and  the  seat 
of  sovereignty  in  the  state.  This  last  was  the  work  of  the 
seventeenth  century  and  it  was  truly  creative  although  a 
work  of  interpretation. 

The  work  of  the  seventeenth  century  was  creative  also 
not  merely  in  the  general  result  to  which  it  was  to  lead  but 
also  in  many  details  by  the  way.  Seventeenth  century 
England  was  deeply  interested  in  its  past  history,  and  the 
leaders  on  both  sides  of  the  conflict  made  an  appeal  to  pre- 
cedent hardly  equalled  in  any  other  age.  But  it  must  be 
admitted  that  precedents  in  favor  of  the  claims  of  parlia- 
ment were  many  times  interpreted  and  urged  in  the  light  of 
what  they  logically  implied  rather  than  of  what  they  origin- 
ally meant.  The  king  also  more  than  once  asserted  that  he 
possessed  a  general  right  of  action  on  the  basis  of  precedents 
which  related  only  to  a  much  more  limited  range  of  cases,  as 
in  the  instance  of  the  so-called  impositions,  a  supertax  added 
by  proclamation  to  the  customs  duties  fixed  by  law.  Imposi- 
tions indeed  had  been  added  in  this  way  to  the  legal  duties 


STRETCHING  OF  PRECEDENT  269 

by  earlier  kings  but  always  for  special  administrative  pur- 
poses, not  for  raising  revenue,  and  in  justifying  his  use  of 
the  right  by  the  earlier  precedents  the  king  was  certainly 
carrying  them  beyond  their  legitimate  application.  The 
case  is  typical  of  the  kind  of  legal  justification  asserted  for 
many  other  things  done  by  the  Stuarts  during  the  century. 

On  the  whole,  however,  it  must  be  said  that  history  was 
with  the  king.  The  stretching  of  precedent  during  that 
time,  in  a  way  which  history  finds  the  most  unwarranted,  into 
something  which  it  did  not  originally  mean  though  perhaps 
logically  implied,  was  on  the  side  of  parliament.  The  seven- 
teenth century  is  for  instance  the  great  age  of  the  perfection 
of  the  writ  of  habeas  corpus  as  the  means  of  securing  the 
citizen  against  arbitrary  executive  action.  But  parliament 
began  the  struggle  to  obtain  this  result,  in  the  dispute  which 
led  to  the  Petition  of  Right  of  1628,  with  the  assertion  that 
the  most  of  what  it  was  to  gain  in  the  end  was  already  his- 
torically its  rightful  possession.  But  however  clearly  his- 
tory must  condemn  the  literal  form  such  claims  assumed,  the 
fact,  which  was  in  truth  the  essential  fact,  should  not  be 
overlooked,  that  the  extended  meaning  which  parliament  gave 
to  precedents  was  really  logically  involved  in  them.  Habeas 
corpus  as  it  existed  before  in  1628  did  logically  imply  what 
parliament  asserted  it  had  meant,  as  a  means  of  defending  the 
individual  against  the  arbitrary  action  of  the  executive, 
though  it  may  never  have  been  actually  so  used. 

What  parliament  was  really  doing  through  all  the  faulty 
history  it  employed,  was  to  apply  logically  in  new  ways,  to 
new  details,  in  further  extensions,  the  fundamental  principles 
which  the  past  had  established,  and  this  was  truly  creative 
work.  The  struggle  between  parliament  and  the  Stuart 
kings  was  the  process  through  which  the  nation  was  learn- 
ing to  understand  what  these  principles  really  implied  for 
the  whole  constitution  of  the  state.  Indeed  the  keenness 
with  which  the  opposition  of  the  seventeenth  century  pressed 
to  their  logical  limit  past  precedents  against  the  king,  often 


270  PARLIAMENT  VERSUS  THE  KING 

to  a  meaning  which  the  makers  of  the  precedent  would  not 
have  recognized  as  their  own,  leads  us  to  suspect  that  dur- 
ing the  long  interval  of  the  absolutist  reaction,  there  had 
already  formed,  unconsciously  and  beneath  the  surface  no 
doubt,  a  clearer  conception  than  ever  before  of  what  the 
constitution  was  and  what  it  might  logically  involve;  that 
the  sixteenth  century  had  in  this  way  really  laid  down  a 
solid  foundation  for  later  advance  on  which  the  seventeenth 
century  was  building. 

Against  extensions  of  this  sort,  if  they  be  really  logical, 
history  can  urge  no  objection.  The  historical  argument  is 
never  of  any  validity  against  the  results  to  which  the  living 
process  of  a  nation's  growth  has  brought  it.  However  far 
they  may  go  beyond  the  beginning  the  past  has  made,  if  they 
are  the  genuine  results  of  national  life,  genuine  outgrowths 
of  the  past,  they  have  a  rightfulness  of  their  own  which  his- 
tory cannot  question.  This  is  what  we  must  say  of  the  main 
things  which  parliament  was  striving  to  obtain  in  the  seven- 
teenth century.  They  were  new  claims  in  form,  but  they 
were  logical  applications  of  established  principles,  and  the 
time  had  now  come  when  it  was  necessary  that  they  should 
be  made  if  the  English  constitution  was  not  to  cease  to  grow. 

To  the  immediate  development  of  the  conflict  between  king 
and  parliament,  two  features  of  the  situation  at  the  accession 
of  James  decisively  contributed.  One  was  the  strength  and 
spirit  of  the  puritan  party,  and  the  other  was  the  condition 
of  national  finances.  The  puritan  party  had  arisen  in  the 
reign  of  Elizabeth.  It  embodied  the  demand  for  a  thorough- 
going reformation  of  the  national  church  in  the  direction  of 
protestantism,  and  especially  of  Calvinism,  whose  doctrines, 
including  their  logical  inclination  towards  republicanism,  it 
had  adopted.1  It  had  not  }ret  begun  to  prove  itself  a  great 
political  power  in  the  nation,  but  it  had  strongly  reinforced 
and  even  led  the  growing  opposition  to  the  queen's  arbitrary 
government  in  her  last  }^ears.  Already  the  separation  into 
i  Prothero,  Documents,  196-226. 


RELIGIOUS  AND  FINANCIAL  PROBLEMS      271 

two  wings  had  begun  which  is  so  important  in  the  seventeenth 
century:  the  presbyterian,  believing  in  a  national  church  with 
a  representative  and  republican  government,  and  insisting  on 
a  strict  conformity  to  its  theological  standards ;  and  a  left 
wing,  in  theology  more  tolerant  and  liberal,  but  in  govern- 
ment more  extreme  in  the  application  of  their  principles  both 
to  ecclesiastical  and  political  organization,  going  to  the  ex- 
tent of  an  actual  democracy.  This  wing  was  known  at  first 
as  the  Brownists  or  separatists,  later  as  independents,  and 
in  modern  ecclesiastical  history  as  congregationalists. 

In  the  reign  of  James  the  presbyterian  wing  was  in  control 
of  the  party,  both  in  numbers  and  leadership,  and  the  separa- 
tists chiefly  distinguished  themselves  by  the  beginning  of  the 
New  England  colonies  in  162-0.  In  the  reign  of  James  also 
the  prcsbyterians  had  not  come  out  of  the  national  church. 
They  were  "  comprehended,"  or  most  of  them  were,  within 
it,  and  it  was  through  the  puritan  spirit  and  ideals  within 
the  church,  rather  than  by  open  rebellion  against  it,  that 
their  influence  was  exerted.  The  chief  thing  to  notice  at  the 
beginning  is  that  it  was  a  fighting  faith.  It  held  that  it  was 
the  duty  of  man  not  merely  to  believe  the  truth  but  to  defend 
it  and  make  it  prevail.  The  preparation  for  conflict  was  fur- 
ther completed  by  the  rise  of  a  high  church  party  in  the 
national  church,  at  the  opposite  wing  from  the  puritans,  and 
by  the  dislike  of  presbyterianism  which  James  had  conceived 
during  his  youth  in  Scotland.  So  closely  intertwined  are 
ecclesiastical  and  political  opposition,  ecclesiastical  and 
political  principles  during  the  seventeenth  century,  that  it  is 
often  impossible  to  separate  them. 

The  financial  problem  which  confronted  the  government  at 
the  beginning  of  James's  reign  would  have  been  a  serious  one 
under  any  circumstances ;  it  was  made  doubly  so  by  the 
extravagance  of  the  king  and  his  ignorance  of  the  value  of 
money.  A  price  revolution,  due  to  the  decline  in  the  value 
of  the  precious  metals,  had  been  going  on  in  the  sixteenth 
century  which  made  it  impossible  to  do  the  business  of  the 


272  PARLIAMENT  VERSUS  THE  KING 

.state  with  the  old  revenues.  The  star  chamber  dinners, 
which  cost  the  treasury  £2  in  1500,  cost  £20  or  more  in 
1600,  partly  owing  perhaps  to  an  increase  of  luxury,  but 
mainly  to  the  increase  of  prices.  Elizabeth's  court  had  been 
on  the  whole  economically  conducted,  and  the  plunderings 
of  Spain  had  furnished  some  income,  so  that  in  her  reign 
taxation  had  not  been  increased  in  anything  like  the  necessary 
proportion  to  meet  the  increased  costs  of  government.  The 
nation  had  not  been  trained  to  understand  the  situation,  and 
now,  with  an  extravagant  king  who  thought  his  new  resources 
practically  unlimited,  the  burden  fell  suddenly  upon  them. 
As  almost  alwa}-s  in  such  cases,  neither  government  nor 
people  understood  the  real  causes  of  their  difficulties,  and 
until  nearly  the  middle  of  the  century  the  necessary  demands 
of  the  government  and  the  natural  reluctance  of  an  unin- 
formed parliament  were  frequent  occasions  of  conflict. 

James  had  received  the  "  millenary  petition "  2  of  the 
puritan  ministers  in  the  national  church  for  further  changes, 
and  in  the  Hampton  Court  conference  strongh*  expressed 
his  condemnation  of  their  tendencies,  before  he  met  his  first 
parliament  in  March,  1604.  It  was  in  this  parliament  that 
the  fundamental  issue  was  first  drawn,  and  the  fundamental 
principles  first  expressed,  though  still  undeveloped,  which 
were  to  characterize  the  conflict  through  almost  the  entire 
century.  In  summoning  this  parliament  the  king  undertook 
to  rule  that  certain  classes  of  persons  of  doubtful  character 
should  not  be  elected  to  the  house  of  commons  and  to  assign 
to  chancery  the  function  of  deciding  whether  his  prescription 
had  been  complied  with  in  individual  cases  or  not.  This 
would  be  to  deprive  the  house  of  commons  of  the  right  to 
decide  upon  the  qualifications  of  its  own  members  and  upon 
disputed  election  cases.  A  conflict  immediately  arose  be- 
tween the  house  and  the  king  over  the  matter,  in  the  course 
of  which  the  king  asserted  that  the  house  "  derived  all  matters 
of  privilege  from  him  and  by  his  grant,"  and  the  house  in  a 
?  Prothrro.   Documents,  413-417. 


DUTY  PLACED  BY  KING  273 

formal  document  called  "  a  Form  of  Apology  "  in  defence 
of  its  position,  probably  not  presented  to  the  king,  declared 
that  "  our  privileges  and  liberties  are  our  right  and  due 
inheritance,  no  less  than  our  very  lands  and  goods,"  that  is, 
possessed  by  the  same  title  as  private  property  and  as  little 
subject  to  withdrawal  by  the  king.  This  was  a  square  issue 
squarely  drawn  but  it  was  not  at  this  time  further  developed. 
In  the  end  the  king  had  to  abandon  the  attempt  which  he 
had  made,  though  the  lesson  that  a  body  of  law  existed  in  the 
state  superior  to  his  will  was  very  imperfectly  learned.3 

Two  years  later  financial  difficulties  first  led  to  action 
typical  of  what  was  to  follow.  Undoubtedly  the  king  was 
in  real  need  of  money  for  the  necessary  expenses  of  the  state 
but,  instead  of  applying  to  parliament,  he  placed,  by  an  act 
of  prerogative,  an  extra  duty  of  five  shillings  per  hundred 
weight  on  imported  currants.  This  is  the  case  of  "  imposi- 
tions "  already  referred  to.  A  merchant,  John  Bate,  or 
Bates,  by  refusing  to  pay  the  extra  duty,  brought  the  ques- 
tion before  the  court  of  exchequer,  and  the  judges  gave  a 
unanimous  decision  in  favor  of  the  king's  right  to  do  as  he 
had  done.4  Undoubtedly  the  right  of  earlier  sovereigns  had 
been  recognized  to  raise  and  lower  tariff  duties  by  proclama- 
tion. But  the  right  had  been  used  to  regulate  trade,  to 
secure  protection  or  retaliation  and  fair  trade.  In  using 
it  not  for  such  purposes  but  to  raise  revenue,  James  was 
assuming  an  important  constitutional  power  which  the  pre- 
cedents did  not  warrant.  It  was  perhaps  natural,  however, 
that  a  court  of  law,  bound  normally  by  the  letter  of  prece- 
dents rather  than  by  the  remote  consequences  which  might  be 
involved,  should  decide  as  it  did. 

The  judges,  however,  went  beyond  what  was  required  of 
them  by  the  case  before  them,  and  laid  down  certain  genera] 
principles  with  regard  to  the  prerogative  which  illustrate  the 
fact  that  the  theoretical  basis  of  absolute  government  was 

3  Prothero,  Documents,  280-281,  286-293. 

*Prothcro,  Documents,  340-355;   A.  and  S.,  329-331. 


274  PARLIAMENT  VERSUS  THE  KING 


more  clearly  developed  at  the  time  than  of  constitutional. 
The  chief  baron  said :  "  The  king's  power  is  double,  ordinary 
and  absolute,  and  they  have  several  [i.e.,  different]  laws  and 
ends.  The  absolute  power  of  the  king  is  not  that  which  is 
converted  or  executed  to  private  use,  to  the  benefit  of  any 
particular  person,  but  is  only  that  which  is  applied  to  the 
general  benefit  of  the  people,  ...  as  the  people  is  the  body 
and  the  king  the  head  .  .  .  and  as  the  constitution  of  this 
body  varieth  with  the  time,  so  varieth  this  absolute  law  ac- 
cording to  the  wisdom  of  the  king  for  the  common  good.  .  .  . 
And  whereas  it  is  said,  that  if  the  king  may  impose,  he  may 
impose  any  quantity  that  he  pleases,  true  it  is  that  this  is  to 
be  referred  to  the  wisdom  of  the  king,  who  guideth  all  under 
God  by  his  wisdom,  and  this  is  not  to  be  disputed  by  a  sub- 
ject." 

The  case,  though  only  involving  a  small  matter  and  merely 
making  a  beginning,  is  thoroughly  characteristic  of  the  con- 
flicts of  the  century.  The  king  stretches  a  precedent,  which 
according  to  the  letter  covers  his  action,  to  make  it  cover  a 
substantial  increase  of  royal  power,  and  the  courts  hold  that 
the  precedent  justifies  the  new  application.  On  the  basis  of 
the  judicial  decision  in  his  favor,  James  shortly  afterwards  is- 
sued a  new  "  book  of -rates,"  in  which  heavy  additional  duties, 
impositions,  were  placed  on  a  great  number  of  imported 
articles  to  be  permanently  collected,  and  parliament 
acquiesced,  though  not  without  discussion  and  remonstrance 
in  which  there  was  some  advance  in  the  understanding  of  the 
principles  involved.  Parliament  in  this  session,  the  fourth 
of  James's  first  parliament,  also  complained  of  abuses  in  the 
operation  of  the  court  of  high  commission  and  of  the  misuse 
of  proclamations.  The  question  of  the  king's  power  in  the 
matter  of  proclamation  being  referred  by  the  council  to  four 
judges,  including  the  two  chief  justices,  they  gave  it  as  their 
opinion  that  the  king  could  not  by  proclamation  create  any 
new  offence  nor  make  an  offence  punishable  by  the  court  of 


MEANS  OF  RAISING  REVENUE  275 

star  chamber  if  it  was  not  so  by  law.5  This  expressed 
opinion  acted  as  something  of  a  check  on  the  tendency  to 
extend  the  royal  power  by  this  means,  but  did  not  end  it. 

James  dissolved  his  first  parliament  in  February,  1611, 
and  did  not  call  his  second  until  April,  1614.  He  was  re- 
luctant to  meet  parliament  again,  but  some  of  his  friends 
had  urged  him  strongly  to  do  so  because  of  his  financial 
difficulties,  and  had  assured  him  that  ways  could  be  found  to 
manage  the  house  of  commons  in  the  king's  interest.  The 
attempt  to  do  so,  however,  had  a  contrary  effect,  and  the 
spirit  of  the  house  was  declared  in  a  vote  against  impositions, 
that  the  king  had  no  right  to  impose  taxes  without  parlia- 
ment's consent.  So  angry  was  the  king  at  the  refusal  of 
parliament  to  make  him  a  grant  before  discussing  grievances, 
that  he  dissolved  it  early  in  June  before  it  had  voted  a  tax 
or  passed  an  act,  and,  following  the  example  of  Elizabeth, 
sent  four  members  of  the  house  of  commons  to  the  Tower  in 
punishment  of  their  conduct. 

The  third  parliament  did  not  meet  until  January,  1621, 
and  during  this  period  of  ten  years,  from  1611  to  1621, 
with  no  parliament  except  that  of  1614  which  did  nothing, 
the  king  thought  himself  justified  in  resorting  to  extra-legal 
means  of  raising  revenue.  Privy  seals,  that  is,  forced  loans, 
were  again  made  use  of,  old  debts  and  fines  rigorously  col- 
lected, titles  sold  and  a  new  title,  that  of  baronet,  created  to 
sell ;  and  after  the  failure  of  the  parliament  of  1614,  a  general 
benevolence  was  imposed,  which  met,  however,  with  great 
opposition.  Oliver  St.  John  was  heavily  fined  and  impris- 
oned for  written  criticism  of  the  measure. 

In  1615  an  important  constitutional  question  was  first 
brought  into  prominence  by  the  action  of  the  king,  whose 
later  settlement  forms  one  of  the  positive  advances  of  the 
century  —  the  question  of  the  independence  of  the  judiciary. 
The  case  was  that  of  Peacham,  a  puritan  minister  accused 
s  A.  and  S.,  334-337. 


276  PARLIAMENT  VERSUS  THE  KING 

of  treason  on  doubtful  evidence  because  of  language  against 
the  king  in  a  sermon  that  he  had  not  preached  nor  published. 
The  king  directed  that  the  judges  of  the  king's  bench  should 
be  separately  consulted,  undoubtedly  in  the  hope  of  influ- 
encing them  to  take  his  view  of  the  evidence.  This  the  other 
judges  did,  but  Chief  Justice  Coke  at  first  objected  against 
consultation  of  the  judges  separately,  and  later  gave  a  writ- 
ten opinion  that  the  evidence  was  .insufficient.  At  this  time 
Coke  did  not  object  to  the  consultation  on  constitutional 
grounds,  but  he  did  so  later,  and  the  case  at  least  served  to 
call  attention  to  the  abuses  possible  in  the  practice. 

In  the  next  year  these  were  strikingly  illustrated  in  another 
case,  known  as  that  of  "  commendams."  The  king  attempted 
to  interrupt  the  trial  of  the  case  which  was  going  on  before 
all  the  judges  of  the  common  law  courts  in  the  exchequer 
chamber,  in  order  to  hold  a  consultation  with  the  judges 
about  it.  On  their  unanimously  refusing  to  delay  as  con- 
trary to  the  law,  they  were  summoned  before  the  king  and  the 
council  and  severely  rebuked  by  James  in  person.  All 
humbly  submitted  except  Coke,  who  still  declared  the  delay 
contrary  to  law.  They  were  then  required  to  say  whether 
they  would  not  delay  a  case  before  them  to  consult  with  the 
king  if  he  judged  his  interests  directly  involved  in  it.  All 
agreed  except  Coke,  who  would  say  only  that  he  would  do 
what  was  proper  for  a  judge  to  do.  He  was  shortly  after 
dismissed  from  his  office  of  chief  justice. 

In  this  case,  as  in  the  case  of  impositions,  the  historical 
precedents  were  with  the  king.  Many  kings  had  consulted 
the  judges.  The  house  of  lords  had  done  so  many  times, 
and  the  law  officers,  Coke  himself,  as  representing  the  crown. 
The  practice  continued  after  the  century  in  infrequent  in- 
stances into  modern  times,  and  the  constitutions  of  a  number 
of  American  states  authorize  such  consultation.  But  certain 
distinctions  are  important,  and  especially  so  in  the  history 
of  the  seventeenth  century,  in  which  the  question  frequently 
arose.     In  the  first  place,  as  underlying  all  phases  of  the 


CONSULTING  THE  JUDGES  277 

question,  it  must  be  borne  in  mind  that  the  judges  can  never 
be  ordinary  law  advisers.  They  are  advisers  who  make  the 
law ;  that  is,  they  not  merely  say  what  the  law  means,  but 
they  say  what  it  means  with  the  power  to  make  their  inter- 
pretation the  actually  controlling  law.  This  should  make 
clear  the  nature  of  the  Stuart  abuse,  for  there  is  a  vast  differ- 
ence under  such  conditions  between  consultation  of  the  judges 
to  settle  a  real  doubt,  or  honestly  to  find  out  what  are  the 
legal  limitations  of  official  action  in  order  to  be  guided  by 
their  advice,  and  consultation  in  order  to  impose  the  opinion 
of  the  executive  upon  the  judges  in  a  future  case  which  must 
come  before  them  for  decision.  If,  when  he  does  so,  the 
executive  has  the  power  to  punish  the  independent  judge  by 
dismissing  him  from  office,  we  have  the  whole  extent  of  the 
danger.  When  at  the  close  of  this  period  the  judges  were 
made  irremovable  except  for  cause  the  danger  was  ended, 
and  it  perhaps  does  not  exist  in  a  state  where  all  officers, 
including  the  judges,  are  elected  for  fixed  terms.  It  must  not 
be  forgotten,  however,  that  a  democracy  may  sometimes  be 
tempted  to  impose  its  opinion  upon  the  judges. 

It  should  not  be  overlooked,  that  the  devotion  of  the  com- 
mon law  courts  and  of  the  lawyers  practising  in  them  to  fixed 
forms  and  to  the  binding  force  of  the  precedent  comes  here, 
and  later  in  the  conflict,  to  the  assistance  of  constitutional 
liberty.  The  rule  of  fixed  forms  had  begun,  as  we  have  seen, 
in  the  thirteenth  century.  It  had  not  always  operated  in  the 
interests  of  justice,  and  the  system  of  equity  jurisprudence 
had  arisen  to  correct  the  defects  it  occasioned.  But  the  rule 
of  the  precedent  trained  the  common  lawyers  to  distinguish 
sharply  between  the  legal  and  the  illegal  and  to  believe  that 
the  illegal  should  not  be  allowed,  a  belief  easily  transferred 
to  the  field  of  constitutional  law.  The  struggle  of  the  first 
two  Stuarts  with  the  opposition  was  indeed  a  struggle  of 
precedents,  which  were  freely  quoted  on  both  sides,  but  the 
characteristic  difference  running  through  both  argumenta- 
tive  discussions    and   judicial    opinion   was   that,    upon   the 


278  PARLIAMENT  VERSUS  THE  KING 

king's  side,  the  precedents  were  cited  in  the  most  narrow  and 
literal  sense  to  justify  an  application  of  powers  not  origin- 
ally contemplated,  while  on  the  side  of  the  opposition  far 
less  emphasis  was  placed  upon  the  literal  sense  of  the  prece- 
dents than  upon  the  principles  to  which  a  logical  extension 
of  them  would  lead.  Both  sides  made  something  new  out 
of  the  precedents,  but  while  there  can  be  no  doubt  but  that 
the  king's  use  more  nearly  corresponded  to  the  formal  mean- 
ing of  the  original,  the  use  by  the  opposition  stated  more 
accurately  the  true  logical  application.  Of  course  there 
was  in  past  English  history  a  considerable  body  of  prece- 
dents wholly  on  the  king's  side,  and  a  smaller  body  wholly 
on  the  side  of  the  opposition,  and  to  these  this  paragraph 
does  not  apply.  It  has  reference  to  precedents  bearing  on 
specific  applications  of  royal  power,  as  in  impositions  or  the 
treatment  of  the  judges. 

The  refusal  of  the  judges  in  the  case  of  commcndams  led 
the  king  to  declare,  in  the  rebuke  which  he  administered  to 
the  judges,  that  his  prerogative  was  twofold,  one  "  ordi- 
nary," which  might  be  and  was  made  the  subject  of  frequent 
dispute  in  the  law  courts,  the  other  higher,  his  supreme  power 
and  sovereignty,  which  could  not  be  so  disputed  or  discussed. 
By  this  declaration  the  king  intended  to  make  known  the 
royal  interpretation  of  the  fact  that  the  king  was  at  once 
under  the  law  and  above  the  law.  Already  several  times  the 
king's  understanding  of  his  prerogative  and  its  relation  to 
the  law  had  been  clearly  announced  by  himself  or  his  sup- 
porters: in  his  own  True  Law  of  Free  Monarchies,  1603;  in 
the  judicial  opinion  already  cited  in  Bate's  cast-,  1606;  in 
Cowell's  Interpreter,  1607,  a  law  dictionary  in  which  the 
absolutist  doctrine  was  stated  with  such  extreme  plainness 
that  the  king  himself  was  not  able  to  support  the  book 
against  parliamentary  objection  and  the  book  .was  withdrawn 
for  modification  ;  and  finally  in  a  speech  of  the  king's  to 
parliament,  1610.° 
o  Protliero,  Documents,  293-295. 


EFFECT  OF  OUTBREAK  OF  WAR  279 

In  such  assertions  as  these  the  king  almost  necessarily 
had  a  certain  considerable  advantage.  In  the  past  it  had 
been  natural  for  thinkers  to  say  that  sovereignty  resided  in 
a  person.  Historically  there  had  been  little  experience  in 
practice  of  a  sovereign  people,  or  of  a  sovereign  legislature, 
and  the  sovereignty  of  the  people  had  not  yet  been  worked 
out  in  any  theory  capable  of  practical  application.  It  had 
been  sometimes  stated  in  philosophical  speculation,  but  not 
with  any  reference  to  working  forms.  It  had  been  sometimes 
stated  in  legal  treatises  but  only  in  the  most  abstract  wa}'  as 
a  principle  on  which  might  be  based  a  very  different  actual 
form  of  government  from  any  democracy,  the  imperial  gov- 
ernment of  Rome  for  instance.  The  Roman  law  declared 
that  the  emperor  possessed  the  supreme  law-making  power 
because  the  people  had  vested  their  authority  in  him — cum 
populus  ei  et  in  eum  omne  imperium  suum  et  potest  at  em  con- 
cedit.  But  it  was  not  a  sovereign  people  of  that  kind  to- 
wards which  the  seventeenth  century  was  working.  Parlia- 
ment could  only  work  by  degrees,  through  gradual  experience, 
towards  equal  clearness  in  the  understanding  and  statement 
of  the  doctrines  on  which  its  position  rested. 

In  the  last  3rears  of  James  I  an  open  conflict  between  king 
and  parliament  was  rapidly  drawing  nearer,  and  the  opposi- 
tion showed  that  it  was  beginning  to  perceive  more  clearly 
the  fundamental  principles  involved.  The  outbreak  of  the 
Thirty  Years'  war  between  the  catholic  and  protestant  states 
of  Germany,  and  especially  the  misfortunes  of  the  protestant 
leader,  Frederick,  Elector  of  the  Palatinate,  the  son-in-law 
of  James,  had  made  the  nation  anxious  to  go  to  the  aid  of 
their  co-religionists  and  bitterly  opposed  to  the  king's  policy 
of  securing  the  peace  of  Europe  through  an  alliance  with 
Spain.  The  invasion  of  the  Palatinate  by  Spanish  troops 
in  the  summer  of  1620,  while  he  was  still  negotiating,  awak- 
ened James's  anger,  and  he  summoned  a  parliament  to  meet 
at  the  end  of  January  to  provide  for  a  war  if  it  should  prove 
necessary.     When    parliament    met,    the    king    pressed    for 


280  PARLIAMENT  VERSUS  THE  KING 

money  for  an  army  and  asked  for  £500,000.  Parliament 
departed  from  its  usual  practice  of  granting  money  only 
towards  the  end  of  a  session  by  voting  at  once  two  subsidies, 
or  about  £160,000,  and  then  turned  to  take  up  certain  abuses 
of  which  there  was  increasing  complaint.  This  it  did  at 
first  with  no  sense  of  opposition  to  the  king  and  not  directing 
its  action  against  him.  They  supposed  rather  that  they 
had  the  approval  of  the  king. 

The  abuse  of  monopolies,  which  had  been  attacked  even  in 
Elizabeth's  time,  was  first  taken  up.7  The  monopoly  of  those 
days  was  a  grant  by  royal  patent  of  the  exclusive  right 
to  deal  in  some  commodity,  often  one  of  general  use,  the 
holder  of  the  grant  making  his  profit  by  an  increase  of  the 
price  to  the  consumer  and  paving  a  proportion  of  his  gains 
into  the  royal  treasury.  James  had  increased  the  use  of 
monopolies  to  some  extent  in  his  attempts  to  raise  money 
without  parliamentary  grant.  By  this  time  so  undeniable 
were  the  abuses  complained  of  that  the  king  made  no  attempt 
to  prevent  parliament  from  dealing  with  them.  No  statute 
was  passed  against  monopolies  by  the  parliament  of  1621, 
but  the  investigation  of  them  led  to  a  much  more  important 
constitutional  result,  the  revival  of  impeachments,  and  their 
revival  in  such  a  way,  so  clearly  for  the  punishment  of 
acknowledged  corruption,  that  the  king,  even  if  he  had  wished 
to  do  so,  could  find  no  ground  on  which  to  object.  Thus, 
without  appearing  openly  to  attack  the  king,  the  most  effec- 
tive weapon  which  the  middle  ages  had  invented  for  combat- 
ting an  arbitrary  government  was  restored  to  the  hands  of 
parliament. 

Impeachments  had  not  been  in  use  since  the  middle  of  the 
fifteenth  century  because  for  one  reason  or  another,  during 
the  whole  of  nearly  two  centuries,  parliament  had  not  at- 
tempted seriously  to  oppose  the  sovereign.  In  such  condi- 
tions, whenever  the  punishment  of  an  official  had  been  desired, 
a  bill  of  attainder  was  a  shorter  and  more  convenient  method, 
TProthero,  Documents,  111-117,  275-277;  A.  and  S.,  325-326,  337-339. 


REVIVAL  OF  IMPEACHMENT  281 

and  impeachment  had  fallen  into  abeyance.  By  the  consti- 
tution of  the  United  States  attainder  is  forbidden,  and 
impeachment  by  direct  inference  is  confined  to  office  holders 
and  expressly  made  a  political  trial  with  punishments  limited 
to  political  penalties.  None  of  these  things,  however,  wad 
true  of  the  original  impeachment.  The  original  of  the 
house  of  lords,  the  old  great  council,  could  try  any  person 
for  any  offence,  if  the  king  thought  fit  to  bring  the  case  there 
for  trial.  The  house  of  lords  of  1621  had  for  all  ordinary 
matters  forgotten  its  connection  with  the  old  great  council, 
and  the  relation  of  its  powers  with  those  of  the  earlier  assem- 
bly from  which  they  were  derived.  Many  things  in  the  seven- 
teenth century,  however,  which  have  disappeared  today,  illus- 
trate that  connection.  The  house  of  lords  was  still  a  crim- 
inal court,  not  merely  for  its  own  members  but  for  any  one, 
if  the  case  was  brought  to  them.  The  fact  is  important  in 
connection  with  the  revival  of  impeachments. 

The  first  of  the  new  impeachments  was  not  in  regular  form. 
The  conduct  of  Mompesson,  the  holder  of  a  monopoly,  was 
investigated  by  the  commons  and  the  evidence  of  his  abuses 
was  laid  before  the  lords,  but  there  was  no  formal  prosecution 
by  the  lower  house.  The  lords  examined  the  evidence,  found 
Mompesson  guilty,  and  sentenced  him  to  heavy  punishment. 
His  colleague,  Michell,  was  dealt  with  in  the  same  way,  as 
were  also  Sir  John  Bennet,  a  judge,  and  Dr.  Field,  a  bishop, 
both  for  corruption.  In  the  impeachment  of  Francis  Bacon, 
the  lord  chancellor,  in  the  same  session,  a  great  forward 
step  was  taken,  not  in  the  revival  of  forms,  but  in  the  punish- 
ment of  a  high  officer  of  the  court  who  had  been  a  faithful 
instrument  of  the  king's.  Yet  in  this  case  also  there  was  no 
direct  attack  upon  the  king,  and  the  king  had  no  defensible 
grounds  from  which  he  could  move  to  the  protection  of  Bacon. 
The  charge  against  him  was  the  acceptance  of  bribes  in  cases 
before  his  court,  and  the  evidence  was  so  indisputable  that 
he  could  only  plead  guilty.8  Whether  the  case  was  a  polit- 
s  Prothero,  Documents,  334-336. 


282  PARLIAMENT  VERSUS  THE  KING 

ical  impeachment  or  not,  and  clearly  there  was  in  it  no  asser- 
tion that  the  minister  was  responsible  for  the  acts  of  the 
king,  it  had  fulh7  established  the  right  of  parliament  to  bring 
charges  of  misconduct  against  a  minister  of  the  crown  and 
to  punish  him  severely.  This  right  was  confirmed  in  162-i 
by  the  impeachment  of  the  earl  of  Middlesex,  the  lord  treas- 
urer, on  similar  charges. 

In  the  same  session  another  important  constitutional  point 
was  settled,  at  least  negatively  and  quite  in  accord  with  the 
principles  involved  in  the  historical  origin  of  parliament, 
which  would  give  the  house  of  commons  no  share  in  the 
judgment-making  power  of  the  house  of  lords  derived  from 
the  old  great  council.  In  finding  guilty  and  sentencing  to 
punishment  one  Floyd,  a  Roman  catholic  lawyer,  not  for  an 
offence  against  itself  but  for  disrespectful  words  spoken 
against  the  Elector  Palatine,  the  house  of  commons  went 
beyond  its  rights,  and  could  not  furnish  precedents  in  sup- 
port of  its  action  when  requested  to  do  so  by  the  king,  nor 
justify  itself  when  the  lords  explained  that  their  privileges 
were  being  infringed.9  Without  a  formal  confession  of  guilt 
it  surrendered  the  case  to  the  lords,  before  whom  it  was 
prosecuted  by  the  attorney  general.  Earlier  also  its  com- 
mittee in  its  revival  of  impeachments  had  reported  that  the 
case  must  go  to  the  lords  for  trial  and  judgment.  These 
conclusions,  undoubtedly  historically  correct,  are  important 
at  the  date  when  they  were  made,  because  later  in  the  century 
great  emphasis  was  to  be  placed  upon  the  assertion  that  par- 
liament, the  high  court  of  parliament,  was  the  highest  court 
of  the  land,  an  assertion  made  often  in  language  easily  mis- 
understood. It  must  be  held  in  mind  that  the  house  of  com- 
mons never  undertook  to  defend  a  claim  to  a  share  in  the 
highest  function  of  a  court  of  law,  the  making  of  the  final 
judgment  which  concludes  a  case,  nor  formed  in  practice  any 
other  part  of  an  actual  court  than  that  occupied  by  the 
practising  attorney.  When  brought  squarely  to  face  the 
»  Prothero,  Documents,  337-339. 


PETITION   BY  THE  COMMONS  283 

question,  it  recognized  the  fact  that  its  power  of  judgment 
and  punishment  extended  only  to  cases  affecting  its  own 
rights  and  privileges. 

As  parliament  paid  no  attention  to  James's  requests  for 
more  money,  but  insisted  upon  busying  itself  with  the  in- 
vestigation of  abuses,  the  king  adjourned  it  in  May  to  meet 
again  in  November.  In  the  interval,  James's  plans  for  ob- 
taining peace  in  Europe  and  protecting  the  Palatinate 
through  an  alliance  with  Spain  made  no  progress,  and  he  met 
parliament  with  a  request  for  £900,000  for  the  English  army, 
which  was  serving  in  Germany  though  in  form  war  did  not 
exist.  With  considerable  show  of  reluctance  the  house  of 
commons  voted  one  subsidy,  less  than  £80,000.  The  king 
certainly  had  some  ground  of  complaint,  but  parliament  was 
not  disposed  to  deprive  itself  of  its  most  certain  means  of 
forcing  the  redress  of  grievances.  Matters  were  brought  to  a 
direct  issue  by  a  petition  drawn  up  by  the  house  of  commons, 
calling  attention  to  the  alarming  spread  of  popery  and  ex- 
pressing the  hope  of  a  protestant  marriage  for  the  prince  of 
Wales  instead  of  a  marriage  with  a  Spanish  princess  which 
the  king  hoped  to  make  in  order  to  cement  the  alliance  he 
desired. 

It  must  be  said  that  in  this  petition  the  house  of  commons 
was  going  a  little  beyond  what  had  so  far  been  recognized 
as  its  sphere  of  action.  Indeed,  down  almost  to  the  present 
time,  the  field  of  foreign  affairs  has  been  considered  to  be- 
long exclusively  to  the  executive.  James  came  instantly  to 
the  defence  of  his  prerogative.  Without  waiting  for  the 
petition  to  be  presented,  he  sent  a  letter  to  the  speaker  com- 
manding him  to  make  known  to  the  house  "  that  none  therein 
shall  presume  henceforth  to  meddle  with  anything  concerning 
our  government  or  deep  matters  of  state,"  including  the 
Spanish  marriage,  and  declaring  his  right  and  determination 
to  punish  misdemeanors  and  insolent  behavior  in  parliament. 
The  house  of  commons  replied  by  a  second  petition,  in  which 
they  prayed  the  king  to  recognize  "  the  ancient  liberty  of 


284  PARLIAMENT  VERSUS  THE  KING 

parliament  for  freedom  of  speech,  jurisdiction  and  just  cen- 
sure," which  they  asserted  was  their  "  ancient  and  undoubted 
right  and  an  inheritance  received  from  our  ancestors.'* 
This  the  king  refused,  and  on  his  side  said  that  their  "  privi- 
leges were  derived  from  the  grace  and  permission  of  our  an- 
cestors and  us,  for  most  of  them  grow  from  precedents, 
which  show  rather  a  toleration  than  inheritance." 

Historically  the  king  was  right  in  regard  to  "  most  of 
them,"  but  the  commons  had  now  come  to  understand  too 
clearly  what  was  involved  in  this  issue  to  allow  the  king's 
claim  to  pass  unchallenged.  They  answered  in  the  "  Pro- 
testation," adopted  December  18,  1621.10  This  was  no 
petition,  but  an  unqualified  declaration :  "  That  the  liber- 
ties, franchises,  privileges  and  jurisdictions  of  parliament 
are  the  ancient  and  undoubted  birthright  and  inheritance  of 
the  subjects  of  England,"  that  affairs  concerning  king,  state 
and  church  are  proper  subjects  for  their  discussion  and  that 
in  their  discussions  they  have  entire  liberty  of  speech.  The 
next  da}'  parliament  was  prorogued  by  the  king,  and  a  few 
days  after  he  sent  for  the  journal  of  the  house  of  commons 
and  in  the  presence  of  the  council  tore  out  the  leaf  upon 
which  the  protestation  had  been  entered.  Three  members 
of  the  house  were  sent  to  the  Tower,  and  John  Pym  was  or- 
dered to  confine  himself  to  his  house,  and  on  January  6  par- 
liament was  dissolved. 

The  protestation  is  worthy  of  special  notice  not  so  much 
for  its  language,  for  that  is  not  greatly  in  advance  of  that 
in  the  "  form  of  apology  "  of  1604,  but  because  it  takes  issue 
sharply  with  the  king  without  disguise  or  pretence  of  form, 
and  because  it  shows  a  somewhat  clearer  perception  than 
had  been  before  indicated  of  what  their  disputes  with  the 
king  might  involve.  It  may  be  taken  thus  to  mark  the  end  of 
the  first  stage  in  the  conflict  of  the  century  between  the  king 
and  parliament,  the  introductory  stage,  covering  the  reign 
io  Prothero,  Documents,  313-314. 


JAMES'S  LAST  PARLIAMENT  285 

of  James,  though  nothing  happens  to  mark  the  opening  of  a 
new  stage  till  a  little  time  after  the  accession  of  Charles  I. 

James's  fourth  and  last  parliament  met  in  February,  1624. 
King  and  parliament  were  not  in  complete  accord  during  its 
one  short  session,  but  they  were  more  nearly  so  than  had 
been  usually  the  case.  James's  plan  for  the  Spanish  mar- 
riage had  failed,  and  he  was  more  in  the  mood  for  war,  or  for 
an  earnest  threat  of  war  than  he  had  been  before.  He  asked 
for  six  subsidies  and  twelve  fifteenths,  and  parliament  voted 
three  subsidies  and  three  fifteenths.  The  subsidy  was  a  di- 
rect land  and  property  tax  put  into  the  fixed  form  of  four 
shillings  upon  the  pound  for  lands  and  two  shillings  and 
eight  pence  on  the  pound  for  goods,  reckoned  upon  an  as- 
sessment also  fixed  which  had  been  made  in  the  reign  of 
Mary.  A  single  subsidy  brought  in  something  more  than 
£70,000.  Five  subsidies  voted  at  once  would  be  in  form 
confiscation  of  the  whole  assessed  value  of  land,  but  it  made 
in  reality  not  a  heavy  tax,  the  assessment  being  extremely 
low  and  the  payment  distributed  over  more  than  a  single  year. 
The  fifteenth  was  an  income  tax  —  a  tenth  in  the  royal  do- 
mains, which  included  most  of  the  towns  —  but  the  sum  to 
be  paid  by  each  local  unit  had  been  fixed  before  the  middle 
of  the  fourteenth  century  and  not  since  increased.  A  single 
fifteenth  amounted  to  about  £30,000.  This  parliament  also 
impeached  the  earl  of  Middlesex,  and  passed  a  statute  de- 
claring monopolies,  except  patents  for  new  inventions,  to 
be  "  altogether  contrary  to  the  laws  of  this  realm,"  "  to 
the  ancient  and  fundamental  laws  "  of  the  realm  the 
preamble  says,  and  therefore  void.  James  dissolved  this 
parliament  at  the  end  of  May,  and  died  on  the  27th  of  the 
next  March. 

Bibliographical  Note. —  J.  N.  Figgis,  The  Divine  Right  of 
Kings,  1914.  S.  R.  Gardiner,  The  History  of  England,  1608- 
16^0,  10  vols.,  1883-4.  C.  H.  Mcllwain,  The  Political  Writings 
of   James    I,    1918.     L.    O.    Pike,    The    Constitutional    History 


286  PARLIAMENT  VERSUS  THE  KING 

of  the  House  of  Lords,  1894.  W.  H.  Price,  English  Patents  of 
Monopoly,  1906.  G.  W.  Prothero,  Introduction  to  Select 
Statutes  and  Constitutional  Documents,  1913.  R.  G.  Usher, 
The  Rise  and  Fall  of  the  High  Commission,  1913. 


CHAPTER  XII 

KING  WITHOUT  PARLIAMENT 

The  reign  of  Charles  I,  at  least  to  1640,  is  a  natural  con- 
tinuation of  his  father's.  But  Charles  was  more  obstinate 
and  more"  shortsighted  than  James,  and  parliament  had  now 
a  clearer  idea  of  what  was  at  stake.  For  these  reasons  dif- 
ferences between  them  drifted  -more  rapidly  to  extremes  than 
in  the  earlier  period.  Charles  had  been  brought  up  to  be- 
lieve implicitly  the  doctrine  of  the  king's  absolute  power  by 
divine  right  and,  as  this  doctrine  was  strongly  held  in  the 
church  and  at  the  court  and  had  the  sanction  of  judicial 
decisions,  he  was  likely  to  be  convinced  of  its  errors  only  by 
the  logic  of  events.  The  personality  of  Charles  was  an  even 
more  decided  influence  in  shaping  the  history  of  his  reign 
than  his  father's  had  been ;  it  came  again,  as  in  the  time  of 
Henry  III,  greatly  to  the  advantage  of  constitutional  growth 
that  a  king  not  intellectually  strong  had  an  exalted  idea  of 
his  position.  While  Charles  was  obstinate,  he  was  also  va- 
cillating. He  could  not  be  convinced  by  argument,  but  his 
conduct  could  be  influenced  by  currents  of  feeling  to  which 
he  was  exposed,  and  changed  by  the  force  of  circumstances 
to  contradict  his  professions.  He  wholly  lacked  the  quali- 
ties so  preeminent  in  the  Tudors,  tact  and  a  keen  instinct 
for  the  drift  of  public  feeling. 

At  his  accession  Charles  was  eager  for  a  war  with  Spain. 
In  less  than  three  months  he  called  his  first  parliament  in 
hope  of  a  large  grant  of  money  for  the  purpose,  but  the 
house  of  commons  would  grant  only  two  subsidies.  The 
house  was  less  interested  in  the  king's  plans  than  in  two  other 
matters :  to  protect  protestantism  against  what  it  believed 
to  be  new  catholic  dangers,  and  the  determination  which  it 

287 


288  KING  WITHOUT  PARLIAMENT 

expressed  in  a  formal  resolution  "  to  discover  and  reform  the 
abuses  and  grievances  of  the  realm  and  State."  Impa- 
tiently Charles  dissolved  the  parliament  on  August  12,  noth- 
ing further  having  been  done;  no  grant  had  been  made  even 
of  tunnage  and  poundage.  But  the  king  could  not  get  on 
without  parliament,  and  his  second  met  on  February  6  next. 
It  at  once  assumed  an  even  higher  tone  than  the  first,  and 
proceeded  to  prepare  an  impeachment  of  the  Duke  of  Buck- 
ingham, the  king's  favorite  minister,  whom  it  believed  re- 
sponsible for  the  worst  abuses.  But  this  Charles  would  not 
permit.  He  summoned  the  commons  to  his  presence  and 
informed  them  that  their  first  business  was  the  granting  of 
supplies,  and  that  he  would  not  permit  his  servants  in  high 
place  near  himself  to  be  called  in  question  for  they  had  done 
nothing  except  at  his  command.  The  house  was  unmoved. 
It  made  no  change  in  its  plans  but  asserted  vigorously  its 
right  to  take  action  against  anyone  guilty  of  abuses  in  a 
position  of  trust.  It  promised  the  king  a  liberal  supply 
but  resolved  to  postpone  making  the  grant  actual  until 
grievances  were  redressed.  On  May  8  the  impeachment  of 
Buckingham  was  brought  up  to  the  house  of  lords  by  the 
managers  for  the  commons.  Two  of  them,  Sir  John  Eliot 
and  Sir  Dudley  Digges,  were  immediately  thrown  into  the 
Tower  for  things  said  in  their  speeches,  and  the  commons 
at  once  resolved  that  they  would  do  no  further  business  until 
the  release  of  their  members.1  The  king  yielded  with  re- 
luctance, but  when  the  commons  resolved  that  tunnage  and 
poundage  could  not  legally  be  collected  unless  granted  and 
that  no  supply  would  be  voted  until  Buckingham  was  re- 
moved, he  dissolved  his  second  parliament  on  June  15. 

It  is  impossible  not  to  see  in  the  story  of  these  fifteen 
months  since  Charles  began  to  reign  that  parliament  had 
moved  boldly  on  to  a  higher  plane.  It  had  taken  in  full 
self-consciousness  a  new  position  of  power  in  the  state  —  a 
position  which  had  long  been  preparing  but  which  had  not 
i  Gardiner,  Documents,  3-44.     Cheyncy,  Readings,  456-457. 


NEW  CONSCIOUSNESS  SHOWN  289 

before  been  occupied.  Not  even  the  relatively  powerful 
parliaments  of  the  Lancastrian  time,  certainly  no  Tudor 
parliament,  nor  quite  even  any  one  of  James's,  showed  the 
same  spirit.  These  parliaments  of  Charles's  feel  themselves 
on  a  par  with  the  king.  They  believe  themselves  able  to 
stand  over  against  him  as  an  equal  in  determining  the  future. 
They  are  fully  prepared  to  enter  into  conflict  with  him  on 
even  terms,  and  they  know  that  they  have  formidable  weapons, 
the  privileges  of  parliament,  impeachment,  and  the  king's 
financial  necessities,  which  they  are  prepared  to  use  to  the 
extreme  in  offence  as  well  as  defence.  Here,  as  elsewhere  in 
the  century,  the  change  is  less  in  institutions  than  in  a  new 
consciousness  of  what  they  mean  and  how  they  can  be  used. 
This  new  consciousness  of  the  meaning  of  old  institutions 
is  strikingly  to  be  seen  in  the  speeches  before  the  house  of 
lords  of  the  managers  of  the  impeachment  of  Buckingham 
for  the  house  of  commons.  Sir  Dudley  Digges  used  the 
words  already  quoted :  "  The  laws  of  England  have  taught 
us  that  kings  cannot  command  ill  or  unlawful  things.  And 
whatsoever  ill  events  succeed,  the  executioners  of  such  de- 
signs must  answer  for  them."  That  is,  the  king  can  do  no 
wrong  in  the  constitutional .  sense  of  that  phrase.  In  the 
closing  speecli  for  the  prosecution,  Sir  John  Eliot  was  still 
more  definite.  "  My  Lords,"  he  said,  "  I  will  say  that  if  his 
Majesty  himself  were  pleased  to  have  consented,  or  to  have 
commanded,  which  I  cannot  believe,  yet  this  could  no  way 
satisfy  for  the  Duke,  or  make  any  extenuation  of  the  charge, 
for  it  was  the  duty  of  his  place  to  have  opposed  it  by  his 
prayers,  and  to  have  interceded  with  his  Majesty  to  make 
known  the  dangers,  the  ill  consequences  that  might  follow." 
The  modern  doctrine  of  ministerial  responsibility  can  hardly 
be  more  fully  stated  in  the  same  number  of  words,  though  of 
course  all  that  was  implied  in  it  was  not  yet  seen.  Here  is, 
however,  the  principle  that  it  was  the  minister's  duty  to  re- 
sist the  orders  of  the  king  if  he  knew  that  they  were  wrong, 
and  to  protest  against  the  attempt  of  the  king  to  carry  out 


290  KING  WITHOUT  PARLIAMENT 

his  will  contrary  to  the  law ;  and  because  he  did  not  do  that 
the  minister  is  responsible  and  must  be  held  accountable. 

On  the  king's  side  there  was  also  a  formulation  of  the  op- 
posing doctrine  which  was  as  new  in  its  explicit  form,  though 
it  was  logically  involved  in  the  king's  theory  of  his  own  place 
in  the  state:  his  definite  assumption  of  responsibilit}'  for  the 
acts  of  his  ministers.  In  a  message  to  the  house  of  com- 
mons in  regard  to  Buckingham,  he  said :  "  And  for  some 
particulars  wherewith  he  hath  been  pressed,  however  he  hath 
made  his  answer,  certain  it  is  that  I  did  command  him  to  do 
what  he  hath  done  therein.  I  would  not  have  the  House 
to  question  my  servants,  much  less  one  that  is  so  near  me." 
The  issue  thus  drawn  between  the  king  and  parliament  was 
one  way  of  stating,  though  that  was  not  yet  understood,  the 
fundamental  constitutional  issue  which  the  seventeenth  cen- 
tury was  to  settle.  It  involved  also,  at  the  beginning  of 
Charles's  reign,  the  tragedy  of  its  close,  for  his  insistence 
upon  his  own  responsibility  made  compromise  impossible. 

It  was  easy  for  the  king  to  send  parliament  home  because 
it  displeased  him,  but  it  was  not  so  easy  with  no  authorized 
taxation  to  meet  the  necessary  expenses  of  the  government. 
It  would  have  been  difficult  even  in  time  of  peace,  and  in  ad- 
dition to  his  war  with  Spain  Charles  was  rapidly  drifting  into 
a  war  with  France,  which  broke  out  in  the  next  year,  1627. 
He  was  forced  to  adopt  the  expedients  of  his  father,  and 
new  ones  also.  Tunnage  and  poundage  were  continued  with- 
out a  grant ;  benevolences  and  forced  loans  were  demanded 
and  privy  seals  were  issued;  heavy  debts  were  contracted; 
exemptions  were  sold ;  the  maritime  counties  were  ordered 
to  furnish  ships  for  the  fleet,  a  medieval  method  of  forming 
and  equipping  a  navy  which  was  not  yet  out  of  use,  and  the 
attempt  was  made  to  extend  the  obligation  even  to  the  inland 
counties.  Altogether  these  expedients  raised  insufficient 
sums,  and  they  excited  bitter  opposition.  The  forced  loan 
was  planned  to  be  a  regular  tax,  based  on  the  assessment  for 
the  last  subsidy  and  intended  to  be  equal  to  five  subsidies,  but 


THE  FIVE  KNIGHTS  291 

little  was  collected.2  The  judges  of  the  king's  bench,  called 
upon  to  sign  a  statement  that  the  loan  was  legal,  refused 
to  do  so,  and,  though  the  chief  justice  was  dismissed,  the  other 
judges  continued  their  refusal.  Payment  could  not  be  en- 
forced. Gentlemen  who  refused  were  thrown  into  prison, 
and  common  men  were  pressed  into  the  army  forming  for  the 
continent.  Martial  law  had  to  be  invoked  with  some  severity 
to  control  the  ill-trained  levies,  and,  to  make  up  for  the  lack 
of  money,  the  troops  had  to  be  quartered  upon  the  local  com- 
munities. It  is  very  likely  true  that  these  measures  were  not 
adopted  to  punish  the  people  for  their  unwillingness  to  pay 
the  king's  taxes,  but  they  showed  clearly  what  an  arbitrary 
government  might  be  led  to  do  and  they  excited  great  alarm. 

A  further  constitutional  question  was  raised  in  the  five 
knights'  case,  or  Darnel's  case,  growing  out  of  the  imprison- 
ment of  gentlemen  for  refusing  to  pay  their  assessments  to- 
wards the  forced  loan.  Five  of  the  knights  arrested,  of  whom 
Darnel  was  one,  sued  out  writs  of  habeas  corpus  in  the  court 
of  king's  bench.3  Their  jailer  made  return  to  the  writ  that 
they  were  held  by  the  special  command  of  the  king.  The 
prisoners'  counsel  refused  to  accept  this  return  as  sufficient 
but,  while  admitting  the  right  of  the  king  and  the  council  to 
make  arrests,  declared  that  the  return  to  the  writ  must  spe- 
cify the  exact  reason  for  the  arrest.  They  cited  in  their 
support  Magna  Carta  and  other  statutes.  The  counsel  for 
the  crown  argued  that  reasons  of  state  often  made  it  very 
inexpedient  to  state  exact  reasons,  and  they  cited  on  their 
side  precedents  and  judicial  rulings.  The  chief  justice 
rendered  the  decision  of  the  bench,  which  was  generally  un- 
derstood to  refuse  to  admit  the  prisoners  to  bail  and  to  sus- 
tain the  action  of  the  crown. 

There  can  be  no  doubt  but  that  historically  the  decision  of 
the  judges  was  correct.  Prerogative  arrest  and  imprison- 
ment without  stating  the  specific  reasons  had  always  been 

2  Gardiner,  Documents,  51-57. 

3  Gardiner,  Documents,  57-64. 


292  KING  WITHOUT  PARLIAMENT 

recognized  as  among  the  rights  of  the  king.  Magna  Carta 
had  made  no  change  in  the  practice,  and  the  right  never  had 
been  before  this  date  seriously  called  in  question,  though 
precedents  may  be  cited  on  the  other  side,  and  there  seems 
to  have  been  at  the  time  some  confusion  between  preroga- 
tive right  and  common  law.  Here  was,  in  the  eyes  of  the 
historian,  a  new  constitutional  claim,  an  attempt  to  limit 
the  royal  prerogative  in  a  new  particular ;  but  it  was  a  claim 
entirely  in  harmony  with  past  progress  and  logically  in- 
volved in  it.  The  letter  of  the  precedents  sustained  the 
king's  position,  but  their  spirit  did  not.  It  was  now  no 
necessity  of  state  from  which  he  was  acting,  but  the  necessity 
of  maintaining  his  illegal  and  unconstitutional  action.  If 
the  nation  had  been  right  in  cutting  off  one  after  another 
the  king's  extra-legal  means  of  raising  revenue,  so  they  were 
right  in  taking  away  an  effective  weapon  for  defeating  their 
will  in  this  particular.  The  history  of  the  king's  opponents 
may  have  been  wrong,  but  their  logic  was  right. 

Charles  found  that  with  all  his  expedients  he  could  not 
sustain  the  burden  of  a  foreign  war,  and  he  was  obliged  to 
try  the  experiment  of  another  parliament,  which  was  sum- 
moned to  meet  in  March,  1628.  In  the  temper  of  the  nation 
the  elections  were  not  likely  to  return  a  house  of  commons 
favorable  to  Charles's  wishes,  and  when  it  met  it  determined 
at  once  to  demand,  as  it  had  before,  the  reform  of  abuses 
before  granting  a  tax,  in  spite  of  the  threatening  language 
of  the  king.  It  is  a  sign  of  considerable  advance,  however, 
that  it  proceeded  now,  not  against  the  ministers  of  the  king, 
but  directly  against  the  king's  interpretation  of  the  consti- 
tution which  threatened  the  establishment  of  absolute  gov- 
ernment. Differences  between  the  crown  and  the  people 
had  now  shaped  themselves  into  very  specific  form.  In  four 
definite  particulars  the  fear  of  the  nation  had  been  greatly 
excited,  and  with  these  four  the  commons  were  determined 
to  deal  specifically  —  illegal  taxation,  arbitrary  imprison- 


THE  PARLIAMENT  OF  1628  293 

ment,  billeting  of  soldiers  on  individuals,  and  punishment 
by  martial  law. 

Just  how  they  were  to  be  dealt  with  in  such  a  way  as  to 
accomplish  the  desired  end  was  a  matter  of  some  doubt  and 
the  subject  of  long  debate.  A  simple  confirmation  of  the 
existing  law,  to  which  the  king  was  quite  willing  to  agree  but 
which  would  leave  him  still  free  to  interpret  the  law  accord- 
ing to  his  own  ideas,  was  not  satisfactory  to  the  commons. 
They  desired  a  statement  which  should  make  their  interpre- 
tation of  the  law  binding  upon  the  courts.  At  first  they  de- 
termined to  proceed  by  bill  which,  when  accepted  by  the  king, 
would  make  their  view  a  statute  on  a  par  with  all  other 
statutes  and  necessarily  binding.  But  the  king  gave  it  to 
be  clearly  understood  that  he  would  never  consent  to  such 
a  bill.  After  further  debate  it  was  decided  to  present  to 
the  king,  from  both  houses,  a  "  petition  of  right." 

Since  the  thirteenth  century  the  petition  had  been  a  con- 
stant feature  of  the  country's  judicial  system.  A  petition 
might  be  addressed  by  any  person  or  body  of  persons,  gen- 
erally to  the  king  himself,  or  to  the  king  and  his  council. 
It  was  the  recognized  method  of  initiating  proceedings  in 
chancery,  and  might  be  used  for  other  purposes.  As  the 
writ  of  right  assumed  the  justice  of  the  plaintiff's  claim,  the 
petition  of  right  assumed  the  justice  of  the  petitioner's  case 
and  went  on  the  supposition  that  all  that  was  necessary  was 
to  bring  it  to  the  king's  attention  and  justice  would  at  once 
be  done.  The  answer  to  such  a  petition  from  a  private  per- 
son generally  was:  fiat  justitia,  or  soit  droit  fait  a  la  partie. 
The  advantage  to  parliament  in  this  method  of  procedure 
was  that  the  petition  and  the  action  taken  upon  it  would  be 
a  matter  of  judicial  record,  like  a  decided  case  in  any  of 
the  courts,  and  would  have  the  same  binding  effect  upon 
other  courts  in  the  future. 

In  drawing  up  the  petition  the  commons  softened  some- 
what the  language  they  had  at  first  proposed  to  use,  but  they 


294  KING  WITHOUT  PARLIAMENT 

did  "humbly  pray  your  most  excellent  Majesty  that  no 
man  hereafter  be  compelled  to  make  or  yield  an}'  gift,  loan, 
benevolence,  tax,  or  such  like  charge  without  common  con- 
sent by  act  of  parliament  " ;  that  no  one  be  molested  "  for 
refusal  thereof  " ;  that  no  freeman  be  imprisoned  without  due 
process  of  law,  nor  detained  by  the  king's  command  "  with- 
out being  charged  with  anything  to  which  they  might  make 
answer  according  to  law,"  implying,  though  not  definitely 
asserting,  that  this  last  was  secured  by  existing  law ;  and 
that  billeting  of  soldiers  and  punishment  by  martial  law 
might  cease.4  To  this  petition  the  king  answered  on  June 
2,  1628:  "  the  king  willeth  that  right  be  done  according  to 
the  laws  and  customs  of  the  realm ;  that  the  statutes  be  put 
in  due  execution,  that  his  subjects  may  have  no  cause  to 
complain  of  any  wrong  or  oppressions,  contrary  to  their 
just  rights  and  liberties,  to  the  preservation  whereof  he 
holds  himself  as  well  obliged  as  of  his  prerogative."  To  the 
commons  this  answer  seemed  ambiguous,  as  an  attempt  to 
permit  the  king  to  substitute  his  own  interpretation  of  the 
law  for  theirs,  as  no  doubt  it  was.  With  the  lords,  they 
applied  for  a  different  answer,  and  finally  the  king  gave  as- 
sent in  the  words :  "  Soit  droit  fait  come  est  desiri"  words 
suggested  by  parliament  and  at  that  time  commonly  used 
in  assenting  to  a  private  bill. 

The  Petition  of  Right  was  therefore  not  a  statute,  though 
it  was  a  matter  of  record.  It  was  rather,  if  its  historical 
antecedents  be  regarded  and  some  irregularities  of  form  be 
disregarded,  to  be  classed  technically  and  in  binding  force 
with  judicial  decisions.  As  a  matter  of  fact,  in  time  to  come 
it  was  not  regarded  with  any  exactness  as  making  law.  Its 
important  provisions  had  to  be  reenacted  before  the  close  of 
the  century.  It  is  as  a  constitutional  document  that  its  sig- 
nificance is  greatest,  and  in  this  respect  it  is  a  sign  of  what 
was  taking  place  rather  than  the  record  of  a  definite  ad- 
vance.    Undoubtedly,   however,   it  belongs   in   the   series   of 

*  A.  and  S.,  339-34-2;  Gardiner,  Documents,  6G-70. 


THE  PETITION  OF  RIGHT  295 

great  documents  of  our  constitutional  history  which  begins 
with  Magna  Carta.  The  Petition  of  Right  in  spirit,  pur- 
pose, and  method  is  exactly  in  line  with  the  Great  Charter. 
It  asserts  that  the  things  to  which  it  demands  the  king's 
agreement  were  already  the  law  of  the  land,  and  it  is  based 
upon  the  supposition  that  the  king  has  shown  himself  so 
unwilling  to  regard  these  principles  that  it  must  obtain  his 
formal  pledge,  binding  upon  his  successors  as  in  1215,  to 
respect  them  in  the  future.  But  it  cannot  be  affirmed  that 
the  Petition  of  Right  is  of  equal  importance  in  English  con- 
stitutional history  with  either  Magna  Carta  or  the  later  Bill 
of  Rights.  It  uses  many  words  after  a  fashion  of  the  time 
and  is  the  least  concise  and  clean-cut  of  all  our  constitu- 
tional documents.  Its  historical  value  is  to  be  found  chiefly 
in  the  precedent  which  it  established  in  the  struggle  of  that 
century  of  the  parliamentary  coercion  of  the  king  in  con- 
stitutional interpretation,  and  in  the  assertion  which  it  made 
in  a  most  striking  manner  of  the  supremacy  of  the  law. 

In  one  respect  the  Petition  of  Right  is  a  sign  that  an  ad- 
vance had  taken  place.  It  is  the  first  attempt  made  since 
the  beginning  of  the  struggle  between  king  and  parliament 
to  draw  a  definite  line  between  prerogative  and  law,  to  fix 
with  some  exactness  the  point  where  the  power  which  is  above 
the  law  shall  end  and  where  the  reign  of  law  shall  begin. 
This  it  attempts  to  do,  not  as  a  general  matter  but  in  specific 
particulars.  That  in  doing  this  it  reduces  the  king's  pre- 
rogative powers  and  sets  new  limitations  to  them  is  quite  in 
harmony  with  the  spirit  of  past  constitutional  growth. 

An  incident  in  the  adoption  of  the  petition  probably  as- 
sisted still  further  to  clarify  ideas  upon  what  was  funda- 
mentally at  issue  in  the  conflict.  The  lords  wished  to  say  in 
an  amendment  which  they  proposed,  that  they  presented  the 
petition  to  the  king  "  with  due  regard  to  leave  entire  that 
sovereign  power  wherewith  your  Majesty  is  trusted  with  the 
protection,  safety  and  happiness  of  your  people."  The  in- 
troduction of  the  idea  of  sovereign  power,  of  sovereignty, 


296  KING  WITHOUT  PARLIAMENT 

in  this  way  was  something  new  in  the  discussion.  Probably 
parliament  understood  only  vaguely  that  these  words  would 
be  an  acknowledgment  that  sovereignty  resided  in  the  king, 
or  what  would  be  implied  in  such  an  admission,  but  the  ap- 
prehension of  the  house  of  commons  was  at  once  excited. 
With  many  expressions  of  wonder  and  doubt  about  "  sov- 
erign  power  "  the  house  rejected  the  amendment,  and  the 
lords  yielded.  In  this  discussion,  however,  they  were  skat- 
ing near  to  the  edge  of  the  most  serious  issue  between  king 
and  parliament.  The  petition  was  in  truth  the  first  step  in 
the  transfer  of  sovereignty  from  king  to  parliament.  The 
acts  of  which  it  complained  were  all  prerogative  acts,  acts 
above  the  law,  acts  of  sovereignty.  These  prerogatives  had 
been  exercised  by  the  king  down  to  this  time  with  no  serious 
opposition.  What  parliament  insists  upon  is  that  now  these 
acts  must  be  transferred  out  of  the  sphere  of  prerogative 
into  the  sphere  of  law,  out  of  the  sphere  of  that  law  which 
the  king  is  above  into  the  sphere  of  that  law  which  is  above 
the  king. 

One  further  characteristic  of  the  Petition  of  Right  should 
not  be  overlooked, —  its  entirely  practical  character.  It 
confines  itself  strictly  to  the  business  in  hand.  It  does  not 
attempt  any  theoretical  justification;  it  la3rs  down  no  funda- 
mental principles  and  borrows  nothing  from  speculative 
philosophy.  It  settles  specific  questions  in  a  specific  way. 
Its  narrow  range  of  application,  only  to  the  four  practical 
points  which  had  risen  in  the  experience  of  the  time,  makes  it 
perhaps  the  most  typical  in  this  respect  in  the  whole  series 
of  Anglo-Saxon  constitutional  documents,  of  all  of  which 
with  hardly  an  exception  this  practical,  unspeculative  na- 
ture is  characteristic.  The  only  significant  exception  is  the 
preamble  of  the  Declaration  of  Independence.  That  gives 
expression  to  the  political  philosophy  made  popular  near 
the  close  of  the  seventeenth  century  by  John  Locke,  and  de- 
rived through  medieval  from  classical  thought.  It  is,  of 
course,  no   expression  of  the   real   ideas   which   carried  the 


FIRST  STEP  TOWARDS  REVOLUTION       297 

American  Revolution  through.  These  are  expressed  in  the 
body  of  the  Declaration,  and  that  is  a  perfectly  straight- 
forward, clear-cut,  terse,  and  businesslike  document.  It 
takes  its  proper  place  in  the  series  which  opened  with  Magna 
Carta,  with  nothing  to  apologize  for  from  the  practical  point 
of  view.  The  Petition  of  Right,  while  less  sharply  formu- 
lated, is  as  eminently  practical. 

If  the  third  parliament  of  Charles  saw  the  first  step  to- 
wards the  transfer  of  sovereignty  from  king  to  parliament, 
it  saw  also  the  first  step  towards  revolution.  In  gratitude 
for  the  acceptance  of  the  petition,  the  house  of  commons 
voted  to  grant  the  king  five  subsidies,  but  prepared  to 
remonstrate  against  the  illegal  collection  of  tunnage  and 
poundage.5  To  prevent  this  Charles  brought  the  session 
to  an  end.  When  the  new  session  opened  six  months  later, 
the  same  question  arose  and  the  king  attempted  to  prevent 
action  by  brief  adjournments  of  the  house.  On  the  second 
occasion  of  the  king's  interference,  the  commons  refused  to 
adjourn,  and  when  the  speaker  declared  that  he  had  the 
king's  orders  to  leave  the  chair,  he  was  forcibly  held  down 
by  two  members,  while  the  door  was  locked  to  prevent  mem- 
bers who  wished  to  go  out  from  leaving,  and  three  resolutions 
prepared  by  Sir  John  Eliot  were  put  to  vote  by  a  private 
member,  in  spite  of  the  speaker,  and  declared  adopted. 
Here  were  acts  not  warranted  by  law  or  practice,  and  done 
in  the  excitement  of  passion.6  The  resolutions  were  in 
themselves  legitimate.  One  declared  against  changes  in  re- 
ligion in  the  interests  of  popery  or  Arminianism,  the  doc- 
trine of  the  high  church  part}*;  one  declared  against  the  col- 
lection of  tunnage  and  poundage  without  a  grant;  and  the 
third  denounced  anyone  who  should  pay  these  illegal  duties 
as  an  enemy  of  the  kingdom.  But  revolution  is  an  appeal  to 
violence  to  do  what  cannot  be  easily  or  quickly  done  by  legal 
methods.     That   the  thing  is  desirable  to  do,   or   that   the 

s  A.  and  S.,  343-346;  Gardiner,  Documents,  70-74. 
eCheyney,  Readings,  460-463;  A.  and  S.,  346-347. 


298  KING  WITHOUT  PARLIAMENT 

majority  wish  it  done,  does  not  make  it  any  the  less  revolu- 
tion. This  was  the  first  step  in  the  road  of  revolution,  but 
it  was  long  before  another  was  taken,  for  Charles  had  had 
enough  of  parliaments  and  resolved  to  call  no  more.  This 
resolution  was  formally  announced  by  proclamation  a  few 
days  after  the  dissolution. 

Charles  did  not  wait  even  for  the  dissolution  to  punish  the 
leaders  of  the  opposition.  Nine  members  of  the  house  of 
commons  were  arrested  and  imprisoned.  The  formal  accu- 
sation against  them  before  the  court  was  carefully  drawn  to 
avoid  the  question  of  parliamentary  privilege,  but  three  of 
them,  Eliot,  Strode,  and  Valentine,  refused  to  answer  on  the 
ground  of  violation  of  privilege.  They  were  heavily  fined 
and  kept  in  prison,  Strode  and  Valentine  until  just  before 
the  short  parliament  of  1640,  but  Sir  John  Eliot  died  in  the 
Tower  in  1632. 

No  adequate  grant  of  taxes  had  been  made  the  king  by 
any  of  his  three  parliaments,  and  the  question  whether  he 
could  dispense  with  future  parliaments  was  really  the  ques- 
tion whether  a  sufficient  extra-parlimentary  revenue  could 
be  provided  to  meet  the  pressing  expenses  of  the  state.  Con- 
siderable experience  in  finding  such  revenue  had  now  been 
accumulated  since  the  accession  of  James  I,  but  the  Petition 
of  Right  explicitly  forbade  the  most  fruitful  sources,  forced 
loans  and  benevolences.  Charles  and  his  advisers  had  no 
intention  of  observing  faithfully  the  spirit  of  the  petition, 
but  they  did  strive  with  some  ingenuity  to  avoid  a  violation 
of  its  strict  letter  in  their  search  for  methods  of  virtual  taxa- 
tion. The  result  of  their  schemes  for  revenue,  looked  at  as 
a  whole,  may  be  described  as  an  antiquarian  revival  of  forms 
of  income,  which,  though  virtually  obsolete,  had  not  passed 
absolutely  out  of  use  and  had  not  been  forbidden  by  statute, 
or  if  forbidden  like  monopolies  could  be  revived  in  a  form  not 
touched  by  the  strict  letter  of  the  statute. 

In  the  reign  of  Henry  III,  when  the  feudal  army  was  be- 
ginning to  fail  the  state,  compulsory  knighthood  had  been 


OLD  FORMS  OF  INCOME  REVIVED  299 

invented  to  compel  men  of  the  requisite  income,  £20  per  an- 
num from  land,  to  become  responsible  for  having  the  arms 
and  equipment  of  the  knight  required  by  the  assize  of  arms 
and  so  to  be  ready  to  defend  the  country.  With  the  further 
decline  of  feudalism,  and  especially  with  the  change  made 
by  the  introduction  of  gunpowder,  the  measure  lost  its  mili- 
tary value,  but  it  was  readily  converted  into  a  source  of 
revenue  by  enforcing  the  requirement  and  taking  fines  for 
exemption,  and  it  had  been  so  used  in  the  past.  The  sum 
brought  in  was  not  sufficient  of  itself,  but  quite  worth  while 
in  a  time  when  it  was  hard  to  find  an}r  revenue.  The  re- 
quired income  was  now  fixed  at  £40  but,  because  of  the  great 
decline  in  the  value  of  money  which  had  taken  place,  this 
was  a  considerably  smaller  income  than  the  £20  of  the  thir- 
teenth century. 

The  royal  forests  had  been  in  medieval  times  very  carefully 
guarded,  and  infringements  upon  their  territory  by  settlers 
or  neighboring  proprietors  had  been  severely  punished.  In 
later  times  their  borders  had  been  a  good  deal  contracted, 
and  portions  of  them  had  been  granted  away  or  occupation 
tacitly  allowed.  It  was  true,  however,  that  legal  evidence 
of  ownership  was  easily  lost,  especially  in  times  of  civil  war, 
and  that  no  length  of  possession  need  be  accepted  as  valid 
proof  against  a  claim  of  the  king's.  Now  the  old  boundaries 
of  the  forests  were  reestablished  and  all  holders  within  them 
were  required  to  prove  their  title  to  possession  under  penalty 
of  very  heavy  fines,  which  were  in  the  end,  however,  largely 
scaled  down.  Charles  was  not  the  first  king  who  had  used 
this  expedient  for  raising  money,  but  it  was  now  so  clearly 
an  act  of  tyrannical  injustice  and  so  plainly  used  to  escape 
the  legal  limitations  of  the  constitution  that  the  exaspera- 
tion excited  was  greatly  out  of  proportion  to  the  money  ob- 
tained. Monopolies  had  been  forbidden  by  the  statute  of 
1624,  but  that  act  had  expressly  excepted  "  any  corpora- 
tions, companies  or  fellowships  of  any  art,  trade,  occupa- 
tion or  mystery."     The  reference  was  of  course  to  the  well 


300  KING  WITHOUT  PARLIAMENT 

known  trade  companies,  but  the  language  allowed  the  re- 
vival of  monopolies  to  corporations  devoted  to  a  trade  with 
all  their  opportunities  for  injustice  and  corruption.  After 
the  adoption  of  the  Petition  of  Right  there  had  been  a  brief 
resistance  by  the  London  merchants  to  the  collection  of 
tunnage  and  poundage,  but  it  had  soon  ceased  and  these 
customs  duties,  with  further  impositions  fixed  by  a  new  book 
of  rates  in  1635,  and  increasing  with  the  increase  of  com- 
merce, furnished  about  half  the  revenue  of  the  state. 

The  most  important  discovery  of  new  revenue  was  in  the 
revival  and  extension  of  ship  money.  In  medieval  times  it 
had  been  very  easy  to  turn  a  commercial  vessel  into  a  ship 
of  war,  and  the  government  had  relieved  itself  of  the  necessity 
of  maintaining  a  large  permanent  fleet  by  calling  upon  the 
port  towns  in  time  of  war  to  furnish  a  certain  number  of 
ships.  There  had  been  in  those  days  no  objection,  legal  or 
constitutional,  to  this  practice  as  calling  for  the  service 
of  the  towns  in  defence  of  the  country.  The  use  of  gun- 
powder, however,  had  made  no  more  serious  change  in  mili- 
tar}T  than  in  naval  methods,  and  it  was  now  a  much  more 
difficult  matter  to  transform  a  mercantile  into  naval  ves- 
sel. The  practice  had  not  passed  out  of  occasional  use; 
Charles  had  made  use  of  it  in  1626  in  the  war  with  Spain; 
but  it  had  ceased  to  be  a  main  dependence  of  the  state.  It 
was  now  proposed  to  make  it  such  again.  That  there  was 
real  need  for  a  stronger  fleet  than  the  king  could  maintain 
from  his  precarious  revenues  is  certain.  The  foreign  rela- 
tions of  England  were  threatening  in  more  than  one  direc- 
tion, and  especially  had  the  very  rapid  growth  of  Dutch 
commerce  and  the  strength  and  policy  of  the  Dutch  fleet 
awakened  much  anxiety  among  English  merchants.  It  was 
not  a  time  of  war,  but  it  was  not  difficult  to  advance  a  plausi- 
ble excuse  of  necessity.  The  first  writ  for  ship  money,  is- 
sued in  October,  1634,  was  near  enough  to  the  traditional 
practice  not  to  lead  to  serious  opposition.7  It  called  upon 
7  A.  and  S.,  347-349;  Gardiner,  Documents,  105-108. 


WRITS  FOR  SHIP  MONEY  301 

the  port  towns  to  furnish  ships  of  war,  but  of  a  size  not  to 
be  found  except  in  London,  or  in  lieu  of  these  to  levy  a  sum 
of  money  sufficient  to  cover  the  cost.  The  demand  was  a 
transition  from  the  ancient  precedent  to  a  practically  un- 
disguised tax.  London  objected  on  the  ground  of  special 
exemptions  without  success,  and  otherwise  the  demand  was 
acceded  to  with  little  remonstrance. 

The  second  writ,  of  August,  1635,  completed  the  trans- 
formation. The  tax  was  extended  to  all  the  kingdom  on 
the  ground  that  as  the  support  of  the  navy  concerned  the 
safety  and  defence  of  all  so  all  should  contribute  to  that 
end.  The  writs  were  sent  to  the  sheriff  of  every  county,  di- 
recting him  to  provide  a  ship  of  war  or  to  levy  and  pay  in 
a  sum  of  money  in  place  of  it.  To  this  writ  so  extended 
there  was  considerable  more  resistance  than  to  the  first  but 
none  that  required  extreme  action  by  the  government. 
Taken  into  the  court  of  king's  bench  in  one  case,  it  led  to  a 
judicial  decision  that  "  many  things  which  might  not  be  done 
by  the  rule  of  law  might  be  done  by  the  rule  of  government  " ; 
that  is,  that  this  was  a  legitimate  exercise  of  the  sovereign 
power,  which  hy  inference  it  was  the  king's  right  to  exercise. 

The  third  writ,  issued  in  October,  1638,  and  like  the  sec- 
ond extending  the  levy  to  the  whole  kingdom,  made  it  plain 
to  every  one  that  the  king  had  discovered  a  method  of  an- 
nual taxation  which  could  be  made  sufficient  to  supply  his 
needs  provided  the  tax  was  paid.  The  levy  brought  in 
something  over  £200,000  and  was  about  equivalent  to  three 
subsidies.  It  was  becoming  clear  also  that  the  principle 
■was  capable  of  still  wider  application.  If  the  king  could 
la}'  a  tax  like  this  upon  alleged  grounds  of  national  necessity 
determined  by  himself  alone,  what  limit  was  there  to  an  ex- 
treme right  of  arbitrary  taxation?  More  and  more  clearly 
the  question  was  emerging  into  light :  where  does  the  right 
of  final  decision  lie,  with  the  king  or  with  parliament,  with 
the  nominal  sovereign  or  with  the  people  speaking  through 
their  representatives?     It  was  to  the  clarifying  of  this  ques- 


302  KING  WITHOUT  PARLIAMENT 

tion  that  the  great  service  of  John  Hampden  was  rendered, 
in  refusing  to  pay  the  levy  of  20  shillings  which  had  been 
made  on  him.  For  the  judges  who  pronounced  for  the  king 
in  his  case  found  it  impossible  to  maintain  the  right  to  lay 
the  tax  on  any  grounds  except  those  of  prerogative.  The 
case  was  tried  before  the  court  of  exchequer  chamber,  that 
is,  by  a  united  bench  of  all  the  common  law  judges,  who  de- 
cided seven  to  five  for  the  king.8  Said  one  opinion :  "  The 
king  pro  bono  publico  may  charge  his  subjects,  for  the 
safety  and  defence  of  the  kingdom,  notwithstanding  any  act 
of  parliament,  and  a  statute  derogatory  from  the  preroga- 
tive doth  not  bind  the  king ;  and  the  king  may  dispense  with 
any  law  in  cases  of  necessity."  Said  the  chief  justice  of  the 
common  pleas :  "  No  act  of  parliament  can  bar  a  king  of  his 
regality  .  .  .  therefore  acts  of  parliament  to  take  away  his 
royal  power  in  the  defence  of  his  kingdom  are  void."  Such 
doctrines  as  these  from  such  a  source,  with  the  practical 
consequences  plainly  evident,  forced  thinking  men  to  con- 
sider carefully  the  fundamental  principles  involved.  For 
the  present  nothing  could  be  done.  A  new  levy  of  the  same 
kind  was  collected  in  each  of  the  three  following  years. 

Charles  was  succeeding  in  his  plan  of  getting  on  without 
parliament.  Putting  together  his  various  means  of  raising 
revenue,  he  was  getting  enough  nearly  to  cover  the  ordinary 
expenses  of  the  state  in  time  of  peace.  If  he  could  avoid  the 
necessity  of  paying  for  an  army  in  addition  to  a  navy,  it 
looked  as  if  he  might  be  ultimately  successful  in  throwing 
off  all  constitutional  restraints.  We  have  therefore  to  con- 
sider now  how  he  found  himself  forced  to  raise  an  army.  In 
doing  this  wc  are  obliged  to  consider  also  how  the  religious 
questions  of  the  day  entered  into  the  constitutional  struggle. 

The  king  had  found  two  men  who  were  of  great  assistance 
in  carrying  out  his  purpose  of  personal  government.  Sir 
Thomas  Wentworth  had  been  one  of  the  leaders  of  the  op- 
position in  the  first  parliaments  of  the  reign,  but  as  time 
s  Gardiner,  Documents,  109-124. 


WENTWORTH  AND  LAUD  303 

went  on  it  was  found  that  his  idea  of  legal  right  as  between 
king  and  parliament  did  not  agree  with  that  of  the  other  op- 
position leaders.  He  believed  that  in  strict  law  the  king 
had  a  larger  body  of  right  than  they  were  willing  to  allow, 
and  in  particular,  though  he  accepted  the  Petition  of  Right 
in  principle,  he  did  not  believe  in  the  right  of  parliament  to 
supreme  authority.  Gradually  he  passed  over  to  the  king's 
side,  no  doubt  from  honest  conviction,  though  he  was  bit- 
terly hated  as  a  renegade.  He  was  finally  to  be  made  earl 
of  Strafford,  but  in  1632  he  was  appointed  lord  deputy  of 
Ireland.  Here  he  had  free  hand  to  develop  his  own  ideas  of 
what  the  royal  government  should  be,  which  was,  in  his  own 
words,  "  thorough,"  or  "  founded  on  a  complete  disregard 
of  private  interests  with  a  view  to  the  establishment,  for  the 
good  of  the  whole  community,  of  the  royal  power  as  the  em- 
bodiment of  the  state."  H,e  also  firmly  believed  that,  if  this 
ideal  was  to  be  realized,  it  must  be  supported  by  a  strong 
military  force,  and  this  he  made  it  his  business  to  prepare  in 
Ireland.  His  great  abilities,  much  above  those  of  most  men 
of  his  time,  as  well  as  the  opportunities  offered  in  his  govern- 
ment, made  him  more  feared  than  any  other  of  the  king's 
supporters. 

William  Laud,  whom  Charles  had  made  archbishop  of 
Canterbury,  was  largely  responsible  for  the  religious  op- 
position which  was  excited.  He  was  by  natural  disposition 
a  leader  of  the  high  church  party  and  an  opponent  of  Cal- 
vinism, and  his  duty  to  religion  and  his  duty  to  the  king 
coincided  in  his  mind  in  his  effort  to  bring  "  comprehension  " 
to  an  end  and  to  drive  the  puritans  out  of  the  national  church. 
He  had  the  full  sympathy  and  support  of  the  king  in  this 
effort,  and  for  years  it  seemed  entirely  successful.  On  their 
side  the  puritans  were  alarmed,  not  merely  by  the  danger  to 
their  own  form  of  protestantism,  but  they  thought  they  saw 
in  the  plans  of  the  high  church  party  preparations  for  the 
restoration  of  Catholicism.  When  they  took  into  account 
also  the  military  successes  of  the  catholic  powers  on  the  con- 


304.  KING  WITHOUT  PARLIAMENT 

tincnt  and  the  influence  of  the  catholic  queen,  Henrietta 
Maria,  they  were  ready  to  despair  of  the  future.  Religious 
and  political  liberty  seemed  perishing  together.  The  first 
result  of  their  despair,  the  hopeless  outlook  as  it  seemed  to 
them  in  both  church  and  state,  "was  the  migration  of  thou- 
sands of  families  to  New  England,  by  which  they  rescued  the 
northern  colonies  from  the  gradual  encroachments  of  Dutch 
and  French. 

But  more  important  than  the  geographical  expansion 
which  the  puritans  secured  were  the  constitutional  ideas 
which  they  brought  to  America.  There  was  indeed  to  be 
for  these  ideas  an  immediate  future  in  England  which  the 
puritan  emigrants  did  not  foresee,  a  future  in  which  they  were 
to  be  forced  to  a  premature  development  in  the  hothouse 
process  of  revolution.  But  it  was  to  be  a  development  short 
lived  and  without  permanent  influence  in  the  mother  country. 
It  was  in  that  other  England  which  they  helped  to  found 
across  the  sea  that  the  peculiar  constitutional  ideas  of  the 
puritans  in  a  slower  and  more  normal  development  were  to 
bear  fruit  for  all  the  world.  Nor  must  the  fact  be  over- 
looked that  it  was  not  in  New  England  alone  that  puritan 
colonists  settled,  nor  through  New  England  influence  alone 
that  puritan  ideas  affected  the  future  of  America.  At  home, 
between  1630  and  1640,  everything  seemed  to  be  going  as 
the  king  and  Laud  desired.  The  modern  newspaper  was  not 
yet  in  existence.  None  of  the  machinery  of  democratic  ex- 
pression, public  meetings,  political  speaking,  party  organiza- 
tion, had  yet  been  devised.  Parliament  still  remained  the 
only  organ  in  the  state  by  which  the  general  opinion  of  the 
nation  could  be  made  conscious  of  itself,  could  be  created, 
gathered,  and  expressed.  By  the  policy  of  the  king  the  op- 
position was  for  a  period  of  eleven  years  deprived  of  the 
opportunity  of  parliamentary  expression,  and  it  was  in 
consequence  helpless  and  dumb.  The  financial  dependence 
of  the  king  on  parliament,  which  was  at  that  date  the  only 


THE  SCOTTISH  COVENANT  305 

thing  making  a  meeting  of  parliament  necessary,  seemed 
for  the  moment  at  least  to  be  successfully  overcome. 

Charles  I  succeeded,  as  has  been  said,  by  his  arbitrary 
measures  in  establishing  a  temporary  independence  of  par- 
liament. Governments  can  hardly  hope,  however,  to  go  on 
for  many  years  without  special  financial  strain,  and  the  end 
came  for  the  government  of  .Charles  through  yielding  to  a 
very  natural  temptation.  So  great  apparent  success  had 
crowned  the  efforts  of  Laud  to  reconstruct  the  English 
church  according  to  the  aristocratic  ideas  of  the  high  church 
party,  that  the  conclusion  seemed  obvious  that  with  the  con- 
tinued backing  of  the  king  the  same  thing  might  be  done  in 
Scotland.  The  king's  ideal  of  monarchical  power  would 
promise  to  be  solidly  established  «in  facts,  if  presbyterianism 
in  Scotland  could  be  curbed  and  a  subservient  church  put  in 
its  place.  The  Scots  proved  to  be,  however,  too  thoroughly 
devoted  to  their  national  worship.  They  formed  the  famous 
Scottish  Covenant  and  resisted  in  arms,  and  Charles  was  com- 
pelled to  raise  and  maintain  an  army.  That  was  too  great 
a  strain  for  his  makeshift  finances. 

Various  expedients  were  resorted  to ;  a  contribution  was 
asked  for  from  London  and  then  from  the  whole  country, 
and  loans  were  requested,  hardly  escaping  violations  of  the 
Petition  of  Right.  Another  obsolete  levy  upon  the  counties 
for  the  support  of  a  military  force,  "  coat  and  conduct 
money,"  was  revived.  Every  expedient  was  resisted  and 
failed.  A  parliament  became  inevitable,  if  the  Scots  were 
not  to  be  left  to  triumph.  Wentworth,  who  had  returned 
from  Ireland  and  was  soon  to  be  made  carl  of  Strafford, 
urged  the  calling  of  a  parliament  believing  that,  whether  it 
granted  supplies  or  refused  them  in  time  of  war,  and  thus  jus- 
tified independent  action  by  the  government,  the  king's  posi- 
tion would  be  strengthened.  The  parliament  was  called  to 
meet  on  April  13,  1640.  The  elections  took  place  in  the 
midst  of  rumors  as  to  the  king's  intentions  in  dealing  with 


306  KING  WITHOUT  PARLIAMENT 

parliament,  but  with  no  certain  knowledge  of  his  plans  and 
no  knowledge  of  the  strength  and  general  prevalence  of  op- 
position views.  No  method  had  yet  been  found  of  ascertain- 
ing public  opinion  in  advance  of  a  meeting  of  parliament. 

When  the  house  of  commons  met,  it  was  found  that  not 
merely  was  there  a  large  opposition  majoritj',  but  that  in 
spite  of  all  the  changes  of  eleven  years  its  leadership  was  as 
able,  experienced,  and  observant  as  before.  Pym  and  Hamp- 
den came  at  once  to  the  front  and  others  were  hardly  sec- 
ond to  them.  Pressure  was  brought  to  bear  at  once  by  the 
king  and  his  supporters  for  an  immediate  grant  of  money. 
The  lords  voted  that  supply  should  come  before  grievances, 
which  the  commons  resented  as  an  infringement  of  their 
privileges  in  regard  to  money  bills.  The  king  offered  to  give 
up  ship  money  in  return  for  a  grant  of  twelve  subsidies.  The 
house  was  not  to  be  moved,  however.  They  saw  clearly  the 
disadvantage  at  which  they  would  be  placed  if  they  gave  the 
king  an  adequate  supply  before  they  had  brought  his  illegal 
methods  to  an  end.  When  Charles  was  convinced  that  they 
could  not  be  moved  from  this  course  he  dissolved  the  parlia- 
ment, after  a  session  of  only  three  weeks  in  which  nothing 
had  been  done. 

But  the  opposition  to  the  king's  government  had  made 
great  gains.  It  had  learned  how  strong  it  was  against  the 
king;  it  had  learned  the  powerful  support  which  it  had  in 
the  general  feeling  of  the  country ;  and  it  had  revealed  to  the 
Scots  that  it  was  not  a  united  nation  which  was  making  war 
upon  them.  The  members  of  the  house  of  commons  returned 
to  their  homes  with  a  new  determination  to  resist  arbitrary 
government,  and  with  new  courage  and  confidence  in  their 
ability  to  defend  their  rights.  The  so-called  "  short  parlia- 
ment "  did  none  of  the  work  of  a  parliament,  but  it  destroyed 
all  chance  of  the  king's  success  and  rendered  the  triumph  of 
the  constitution  certain. 

After  the  dissolution  of  the  parliament  the  king  and  Straf- 
ford made  the  utmost  effort  to  overcome  both  the  financial 


PETITION  OF  TWELVE  PEERS  307 

and  military  difficulties  of  their  situation.  Some  members 
of  the  commons  were  imprisoned  on  pretexts  avoiding  the 
privileges  of  the  house.  The  sheriffs  were  urgently  pressed 
to  collect  the  ship  money  and  coat  and  conduct  levies,  the 
lord  mayor  and  aldermen  of  London  to  make  a  loan ;  con- 
vocation, which  sympathized  with  the  king's  Scottish  policy, 
tried  to  support  a  general  benevolence ;  twice  an  attempt 
was  made  to  get  a  loan  from  Spain  in  return  for  help  against 
the  Dutch ;  it  was  proposed  to  debase  the  coinage ;  it  was 
planned  to  seize  Spanish  bullion  deposited  in  the  tower  for 
coinage ;  all  to  no  purpose.  From  all  sources  only  small 
sums  dribbled  into  the  treasury,  while  expenses  were  con- 
stantly mounting.  Meantime  the  army  which  had  been 
raised  was  a  serious  problem.  It  was  undisciplined,  badly 
supplied,  and  scarcely  paid  at  all.  To  maintain  it  in  the 
semblance  of  an  army  it  had  to  be  quartered  on  the  country, 
and  martial  law  had  to  be  rigorously  enforced,  both  in  real 
violation  of  the  Petition  of  Right.  In  August  the  Scottish 
army  crossed  the  border  with  practically  no  resistance, 
and  occupied  the  counties  of  Northumberland  and  Durham. 
They  announced  that  they  intended  no  attack  on  the  Eng- 
lish nation,  which  they  believed  to  be  in  sympathy  with  their 
cause,  and  that  they  would  pay  for  all  supplies  taken  and 
refrain  from  violence.     These  promises  they  kept. 

At  the  end  of  August,  twelve  peers  united  in  a  petition  to 
the  king,  reciting  "  the  great  distempers  and  dangers  now 
threatening  the  Church  and  State  and  your  Royal  person," 
and  asking  "your  most  Excellent  Majesty  that  you  would 
be  pleased  to  summon  a  Parliament  within  some  short  and 
convenient  time."  To  avoid  this  if  possible,  or  at  least  to 
gain  time,  Charles  fell  back  again  upon  an  old  precedent. 
It  was  not  yet  forgotten  that  the  great  council  had  once 
performed  some  of  the  functions  of  parliament,  nor  that 
meetings  of  it  had  still  been  held  long  after  parliament  had 
come  into  existence.  Accordingly  writs  were  issued  follow- 
ing the  old  form,  for  a  meeting  of  the  peers  at  York  on  the 


308  KING  WITHOUT  PARLIAMENT 

24th  of  September.9  The  great  council  made  a  treaty  with 
the  Scots,  by  which  they  were  to  hold  the  two  northern  coun- 
ties until  a  definite  peace  was  made  and  to  receive  £25,000 
per  month  for  their  expenses.  Otherwise  it  could  do  nothing 
but  pledge  the  security  of  the  peers  to  a  loan  for  the  king's 
pressing  necessities.  Already  matters  had  been  growing 
worse  so  rapidly  that  a  parliament  could  no  longer  be 
avoided,  and  it  had  been  called  to  meet  on  November  3. 

Bibliographical  Note. —  A.  V.  Dicey,  The  Law  of  the  Con- 
stitution, 1915.  S.  R.  Gardiner,  The  History  of  England, 
1603-16^0,  10  vols.,  1883-4.  E.  Jenks,  The  Story  of  the 
Habeas  Corpus,  Law  Quart.  Rev.,  xviii  64,  1902.  C.  H. 
Mcllwain.  The  High  Court  of  Parliament,  1910.  W.  Notestein, 
The  Stuart  Period,  Repts.  Am.  Hist.  Association,  1916,  I.  391. 
F.  H.  Relf,  The  Petition  of  Right,  1917- 

»  Gardiner,  Documents,  64-66. 


CHAPTER  XIII 

THE  VICTORY  OF  PARLIAMENT 

After  an  election  which  exhibits  in  the  efforts  made  by  the 
opponents  of  the  king  more  of  the  characteristics  of  a  mod- 
ern election  than  any  held  before  it,  the  "  long  parliament  " 
met  in  a  most  determined  spirit.  The  house  of  commons  was 
almost  unanimous.  The  number  of  members  who  were  ready 
to  defend  the  acts  of  the  king  against  the  attacks  of  the  ma- 
jority was  at  first  very  small.  The  majority  on  its  side  was 
conscious  of  the  character  of  the  crisis  in  which  they  were 
called  to  act,  of  what  was  really  at  issue  between  monarchy 
and  parliamentary  government,  as  no  similar  body  of  men 
had  ever  been  before  in  any  crisis  of  English  history.  This 
was  the  net  result  of  Charles's  reign  to  this  date.  In  their 
thinking  also,  in  the  argumentative  defence  of  their  position, 
if  they  had  not  yet  reached  any  ultimate  principles  which 
they  could  state,  they  were  at  least  on  the  eve  of  great  ad- 
vance in  that  direction.  It  was  an  advance  new  to  history 
if  we  consider  it  as  involving  not  merely  a  theoretical  state- 
ment of  the  sovereignty  of  the  people  but,  as  it  did  before  the 
close  of  the  century,  the  practical  operation  of  that  prin- 
ciple through  representatives  responsible  to  the  people.  In 
this  sense,  while  the  results  were  to  be  borrowed  by  all  men, 
the  advance  is  particularly  interesting  to  the  student  of  the 
origin  of  American  constitutional  ideas,  for  this  is  the  be- 
ginning from  which  they  grew  in  continuous  life  on  American 
soil.  The  commons  could  hope  also  to  proceed  to  extremes 
against  the  king  without  interruption,  for  the  Scottish  army, 
known  to  be  in  sympathy  with  them,  was  retaining  its  station 
in  the  north  of  England  ready  to  march  on  London  at  a  mo- 
ment's notice. 

309 


310  THE  VICTORY  OF  PARLIAMENT 

The  first  step  of  the  house  of  commons  was  the  impeach- 
ment of  Strafford.  He  had  reluctantly  come  to  London 
from  the  north  at  the  urgent  request  of  the  king,  who  had 
promised  him  that  he  "  should  not  suffer  in  his  person,  honor 
or  fortune."  Parliament  opened  on  the  3d  of  November; 
Strafford  was  arrested  and  placed  in  custody  on  the  11th, 
and  the  king  made  no  attempt  to  prevent  the  impeachment. 
There  was  no  doubt  some  personal  bitterness  against  a  man 
who  seemed  to  the  opponents  of  the  king  to  be  an  apostate 
from  their  cause ;  they  were  also  no  doubt  afraid  of  his 
abilities ;  but  it  is  equally  true  that  in  him  they  intended  and 
conducted  an  attack  upon  the  king  which  did  much  to  bring 
the  fundamental  contradiction  of  the  two  positions  into 
light.  The  accusation  was  treason.  But  as  yet  in  English 
history  there  had  been  no  definition  of  treason  except  as  an 
offence  against  the  king.  If  sovereignty  in  reality  resided 
in  the  king,  treason  took  necessarily  the  form  of  an  offence 
against  him.  Here  was  a  logical  difficulty  insuperable  to 
ordinary  and  traditional  ways  of  thinking.  Strafford,  as 
the  most  devoted  supporter  of  the  king  in  his  conflict  with 
parliament,  could  not  have  committed  treason  in  any  his- 
torical meaning  of  the  term.  Yet  some  way  must  be  found 
of  convincing  the  house  of  lords,  on  which  rested  the  re- 
sponsibility of  judging  a  man  upon  a  capital  charge,  and 
which  hesitated  at  such  straining  of  the  law,  that  they  might 
righteously  find  guilty  of  treason  and  condemn  to  death  one 
who  had  most  faithfully  served  the  king  as  the  king  himself 
believed.  If  this  could  not  be  done,  the  hope  of  a  successful 
impeachment  must  be  abandoned. 

Forced  forward  by  this  dilemma,  the  leaders  of  the  house 
of  commons  advanced  in  the  formulation  of  their  case  to  a 
statement  which  they  might  logically  have  rested  on  Magna 
Carta  had  they  known  as  much  of  the  true  historical  influ- 
ence of  that  document  during  the  formative  centuries  of  the 
past  as  they  believed  themselves  to  know  of  its  special  clauses. 
As  a  matter  of  fact,  though  there  had  been  much  thinking 


IMPEACHMENT  OF  STRAFFORD  311 

on  the  parliamentary  side  since  the  king's  father  began  to  put 
the  issue  as  he  understood  it  into  words,  they  were  not  en- 
tirely conscious  of  what  they  were  doing.  It  is  probable 
that  they  were  thinking  only  of  the  specific  case  and  its  dif- 
ficulty, though  reasoning  concerning  the  foundations  of  gov- 
ernment had  already  begun  and  was  soon  to  go  very  far  in 
the  democratic  wing  of  the  party.  In  reality  what  they  did 
in  constructing  and  endeavoring  to  prove  their  accusation  of 
treason  was  to  combine  together  the  fundamental  principle 
on  which  Magna  Carta  rested  with  that  on  which  impeach- 
ment rested.  If  there  existed  a  body  of  law  which  the  king 
was  bound  to  keep,  and  if  the  king  who  refused  obedience 
could  be  driven  from  the  throne,  made  non-existent  in  the 
state,  then  surely  the  lesser  man,  the  minister  who  aided  and 
abetted  the  king  in  his  refusal,  might  justly  be  made  to  suffer 
the  penalties  of  treason.  But  they  did  not  quite  see  that  this 
was  what  they  were  doing.  The  argument  in  this  form  was 
still  beyond  them.  They  still  interpreted  the  past  history 
of  the  constitution  too  narrowly,  however  rapidly  they  were 
advancing  in  the  understanding  of  its  meaning. 

What  Pym  said  in  opening  the  case  of  the  commons  be- 
fore the  lords  was  that  Strafford  had  committed  treason  in 
attacking  and  endeavoring  to  subvert  the  fundamental  laws 
of  the  country  and  the  liberties  of  the  subjects;  or  as  it  was 
phrased  in  the  bill  of  attainder,  where  the  formal  accusation 
was  no  longer  treason  against  the  king,  but  "  high  treason," 
against  whom  or  what  not  specified,  "  for  endeavoring  to  sub- 
vert the  ancient  and  fundamental  laws  and  government  of 
His  Majesty's  realms  of  England  and  Ireland  and  to  intro- 
duce an  arbitrary  and  tyrannical  government  against  law  in 
the  said  kingdom."  The  case  for  impeachment  was  not  clear 
enough  to  convince  the  lords,  and  a  bill  of  attainder  had  to 
be  substituted  for  it.1  The  lords  were  but  little  better  satis- 
fied with  this  form,  and  it  could  be  carried  only  in  a  very 
small  house  under  the  influence  of  rumored  plots  and  vio- 
iA.  and  S.,  3G1-362;  Gardiner,  Documents,  136-158. 


.312  THE  VICTORY  OF  PARLIAMENT 

lence  and  by  the  mob  pressure  of  puritan  London,  and  by 
the  same  means  the  king  was  made  to  sign  the  bill.  Before 
this  result  was  reached,  Archbishop  Laud  had  been  im- 
peached, and  Lord  Keeper  Finch  and  the  six  other  judges 
who  had  decided  against  Hampden  in  the  ship  money  case. 

In  the  meantime  there  had  begun  a  period  of  legislative 
activit}'  which,  if  the  importance  of  the  acts  passed  be  con- 
sidered and  the  short  time  occupied  in  their  passing,  has 
hardly  been  equaled  in  parliamentary  history.  It  was  in- 
deed mostly  legislation  of  a  destructive  character  in  which 
the  king  was  deprived  of  the  institutions  of  arbitrary  govern- 
ment and  of  the  sources  of  illegitimate  revenue  which  had 
been  found  for  him,  but,  as  making  for  the  security  of  the 
constitution  and  determining  the  character  of  the  future, 
even  the  destructive  legislation  was  constructive  in  a  high 
degree.  Parliament  opened  on  November  3,  1640,  and  both 
houses  adjourned  early  in  September  1641,  after  a  session  of 
ten  months. 

The  first  act  passed  was  to  secure  the  regular  meeting 
of  parliaments.  It  provided  for  a  meeting  at  least  once 
in  three  years.  If  in  the  third  year  parliament  had  not  been 
summoned  before  the  third  day  of  September,  provision  was 
made  that  writs  should  be  issued  or  an  election  held  with- 
out the  act  of  the  king,  and  that  parliament  should  meet  on 
the  second  Monday  of  November.2  It  was  also  provided  that 
no  parliament  should  be  dissolved  or  prorogued  within  50 
days  of  its  meeting  without  its  own  consent,  but  the  life  of 
a  parliament  was  limited  to  three  years.  This  was  an  act 
changing  the  constitution  as  it  had  come  down  from  the 
past,  and  it  was  in  principle  permanent  though  not  in  the 
form  enacted.  A  little  later  parliament  went  a  step  farther 
in  the  same  direction  by  a  still  more  revolutionary  enact- 
ment that  the  existing  parliament  should  not  be  dissolved 
or  prorogued  without  its  own   consent.3     This  was   asking 

2  A.  and  S.,  350-359;  Gardiner,  Documents,  144-155. 
s  A.  and  S.,  362-363;  Gardiner,  158-159. 


RADICAL  AMENDMENTS  313 

the  king  to  surrender  more  than  the  previous  bill  required, 
and  deprived  him  of  all  his  usual  weapons  against  parlia- 
ment, but  it  came  to  him  in  the  excitement  about  Strafford's 
execution,  and  he  seems  to  have  signed  it  without  much  con- 
sideration. It  may  have  been  revolutionary  as  taking  away 
the  King's  constitutional  powers,  but  it  became  statute  law 
upon  his  signing  it.  The  collection  of  tunnage  and  pound- 
age without  authority  of  parliament  was  made  illegal ;  ship 
money  was  abolished ;  compulsory  knighthood  and  the  abuse 
of  the  forests  were  done  away  with  and  the  royal  right  of 
purveyance  limited ;  impressment  for  the  army  by  preroga- 
tive was  ended ;  and  by  a  resolution  of  the  two  houses,  not  a 
statute,  it  was  declared  that  the  judges  ought  to  hold  office 
for  life  or  good  behavior,  a  reform  which  did  not  go  into 
permanent  effect. 

These  were  important  changes  seriously  limiting  the  pos- 
sibility of  arbitrary  government,  as  that  had  been  exercised 
by  the  Stuarts,  but  the  action  of  parliament  with  reference 
to  the  prerogative  jurisdiction  of  the  council,  and  of  the 
special  courts  which  had  grown  out  of  it,  was  the  most 
radical  constitutional  amendment  effected  in  this  session 
and,  in  the  form  in  which  it  was  enacted,  the  most  permanent. 
That  extraordinary  jurisdiction  of  the  king  in  his  council, 
above  the  ordinary  and  common  law  because  the  expression 
of  the  prerogative,  which  had  existed  since  the  establishment 
of  the  Norman  monarchy,  and  in  which  had  originated  in 
the  twelfth  century  the  whole  modern  common  law  and  equity 
jurisprudence  of  England,  was  brought  to  an  end.4  It  was 
enacted  that  "  neither  his  Majesty  nor  his  Privy  Council 
have  or  ought  to  have  any  jurisdiction,  power  or  authority, 
by  English  bill,  petition,  articles,  libel,  or  any  other  arbi- 
trary way  whatsover,  to  examine  or  draw  into  question,  de- 
termine or  dispose  of  the  lands,  tenements,  hereditaments, 
goods  or  chattels  of  any  of  the  subjects  of  this  kingdom; 
but  that  the  same  ought  to  be  tried  and  determined  in  the 
<  Gardiner,  Documents,  179-186;  A.  and  S.,  363-366. 


314  THE  VICTORY  OF  PARLIAMENT 

ordinary  courts  of  justice,  and  by  the  ordinary  course  of 
law." 

The  councils  of  the  north  and  of  Wales  were  abolished  and 
the  ordinary  jurisdiction  of  the  privy  council.  The  council 
could  still  arrest  and  commit  for  trial,  but  the  trial  must  be 
in  the  ordinary  courts;  and  the  appellate  jurisdiction  of  the 
council  which  had  grown  up  for  places  outside  England, 
like  the  Channel  Islands,  was  not  taken  away.  The  ec- 
clesiastical court  of  high  commission,  which  had  been  ex- 
tensively used  by  Laud  in  his  persecution  of  the  puritans, 
was  abolished  by  a  separate  statute.5  This  legislation  was 
continued  in  force  at  the  Restoration  of  1660  and  the  sur- 
viving appellate  jurisdiction  of  the  council,  all  that  was  left 
of  its  ancient  powers  as  a  court,  formed  the  basis  of  its 
modern  judicial  function.  Looked  at  constitutionally  these 
acts  against  the  prerogative  courts  did  more  than  any  other 
of  the  period  of  the  Great  Rebellion  to  secure  permanently  for 
Englishmen  what  is  called  in  modern  times  the  rule  of  law, 
the  supremacy  of  law  over  the  king,  and  so  to  render  an  ab- 
solute monarchy  impossible.  Indeed  they  almost  brought 
prerogative  itself  to  an  end  as  that  had  been  understood  in 
the  middle  ages,  and  they  illustrate  the  fact  that  the  destruc- 
tive legislation  of  the  time  was  also  in  a  high  degree  con- 
structive. 

These  measures  were  all  adopted  by  substantial  majorities, 
but  the  session  was  not  yet  half  over  when  the  differences 
began  to  appear  which  were  to  divide  the  house  of  commons 
and  finally  the  kingdom  into  two  almost  equal  parties.  On 
December  11  a  strong  petition  was  presented  from  London 
asking  for  the  abolition  of  bishops  6  and  a  few  weeks  later 
one  signed  by  a  thousand  ministers  asking  that  the  govern- 
ment of  the  church  by  bishops  be  reformed.  These  petitions 
had  strong  support  in  the  house  in  the  debates  which  fol- 
lowed,  but   decided   differences    of   opinion    and   feeling   on 

PA.  and  S.,  366-369;  Gardiner,  Documents,  186-189. 
e  Gardiner,  Documents,  137-144. 


THE  GRAND  REMONSTRANCE  315 

ecclesiastical  questions  were  revealed  which  tended  to  divide 
the  members  sharply  into  two  opposing  sides.  On  one  side 
was  the  puritan,  as  yet  in  leading  the  business  of  parliament 
practically  prcsbyterian  only,  who  wished  to  do  away  al- 
together with  the  episcopal  constitution  of  the  church ;  and 
on  the  other  was  the  church  party  which  wished  to  maintain 
the  church  in  most  matters  as  it  existed,  but  was  not  entirely 
united  within  itself  on  how  far  the  reform  of  acknowledged 
abuses  should  go.  On  the  position  of  the  bishops  as  perma- 
nent legislators  in  parliament  there  was  less  difference  of 
opinion,  and  the  commons  passed  a  bill  for  their  exclusion 
with  no  great  opposition,  but  it  was  rejected  by  the  lords. 
A  more  extreme  measure,  called  the  root  and  branch  bill, 
which  would  do  away  with  the  episcopal  constitution  of  the 
church  entirely  did  not  pass  the  commons.  While  it  is  true 
that  the  beginning  of  a  division  into  parties  was  due  to  dif- 
ferences in  regard  to  church  government  and  worship,  and 
while  that  party  which  later  supported  the  king  began  to 
form  more  from  loyalty  to  the  church  than  from  loyalty  to 
him,  it  was  evident  as  the  session  drew  to  its  close  that  the 
number  of  those  who  thought  that  enough  had  been  de- 
manded of  the  king  was  increasing.  When  parliament  re- 
assembled on  October  20,  1641,  those  who  were  ready  to 
oppose  any  further  extreme  measures  were  almost  half  the 
house. 

A  trial  of  strength  came  soon  after  parliament  opened. 
Shortly  before  the  adjournment  in  September,  Charles  had 
gone  to  Scotland  in  the  hope  that  he  might  so  arrange  mat- 
ters there  that  he  could  gain  help  against  his  opponents  in 
England.  In  this  he  failed,  but  the  attempt  excited  renewed 
fear  of  what  he  might  be  able  to  do  and  led  the  leaders  of  the 
opposition  to  draw  up  a  document  known  as  the  Grand  Re- 
monstrance, which  is  at  once  a  defence  and  a  programme.7 
It  has  been  called  an  appeal  to  the  nation  by  the  party  re- 
solved to  go  on  with  radical  changes  both  in  state  and  church. 
7  A.  and  S.,  376-380;  Gardiner,  Documents,  20&-232, 


316  THE  VICTORY  OF  PARLIAMENT 

It  is  a  long  document  and  after  the  fashion  of  the  time  not 
concise.  It  recounts  the  wrongdoings  of  Charles,  states 
what  had  been  accomplished  in  reform,  and  outlines  what 
still  remained  to  do.  Its  most  interesting  proposal  from  the 
point  of  view  of  the  present  constitution  is  that  the  king's 
ministers  should  be  "  such  as  Parliament  may  have  cause  to 
confide  in."  It  was  carried  by  a  majority  of  11  only  in  a 
vote  of  more  than  300. 

Charles  arrived  in  London  from  Scotland  about  the  same 
time  and  not  long  after  returned  answer  declaring  that  he 
could  not  surrender  the  undoubted  right  of  the  Crown  to 
appoint  ministers  and,  saying  that  he  knew  of  no  wicked 
party  in  the  council,  to  which  the  Remonstrance  had  at- 
tributed the  conduct  complained  of,  virtually  assumed  re- 
sponsibility himself  for  all  that  had  been  done.  A  few  days 
later  he  made  a  serious  mistake  of  tactics.  He  directed  the 
attorney  general  to  lay  articles  of  impeachment  of  treason 
before  the  lords  against  five  members  of  the  commons.8 
When  the  lords  did  not  act  at  once,  he  went  in  person  to  the 
commons'  chamber  to  arrest  the  men.  They  had  escaped, 
the  speaker  refused  to  answer  the  king,  and  he  was  obliged 
to  retire  in  failure.  If  Charles  had  warrant  in  law  for  any 
of  the  steps  of  this  action,  it  was  law  so  ancient  as  to  be  long 
obsolete,  and  loud  outcry  was  raised  at  the  illegality  and 
violation  of  privilege.  The  only  effect  was  to  inflame  pas- 
sion and  hasten  the  drift  to  civil  war  which  now  became  rapid. 
The  king  left  London  and  both  sides  began  to  prepare  for 
the  inevitable,  the  king's  party  constantly  growing  in 
strength  from  those  who  were  by  natural  disposition  loyal 
to  the  Crown  and  still  more  from  those  who  were  opposed  to 
a  puritan  control  of  the  church. 

Actual  fighting  in  the  civil  war  began  over  the  question  of 
the  control  of  the  militia,  the  only  organized  military  force  in 
England,  and  the  action  of  the  house  of  commons  in  the  mat- 
ter marks  another  step  forward  towards  the  doctrine  of  the 
8  Gardiner,  Documents,  236-237, 


THE  MILITIA  ORDINANCE  317 

sovereignty  of  the  people.  When  the  king  resolutely  re- 
fused to  accept  the  bill  transferring  the  appointment  and 
responsibility  of  militia  officers  from  himself  to  parliament, 
the  house  of  commons  resolved  to  carry  out  its  will  by  what 
it  pleased  to  call  an  "  ordinance,"  9  remembering  that  there 
had  been  in  early  times  law-making  by  non-parliamentary 
legislation  called  by  that  name,  but  forgetting  that  an  or- 
dinance in  the  fourteenth  century  was  not  an  act  of  parlia- 
ment without  the  king  but  an  act  of  king  and  council,  or  lords, 
without  the  commons,  but  the  misuse  of  the  term  is  rather 
t}rpical  of  the  antiquarian  arguments  which  were  used  for 
justification  at  the  time.  In  defence  of  their  action,  of  their 
right  to  make  law  without  the  king's  formal  consent,  the 
house  of  commons  declared :  "  What  they  do  herein  hath 
the  stamp  of  the  royal  authority,  although  His  Majesty, 
seduced  by  evil  counsel,  do  in  his  own  person  oppose  or  in- 
terrupt the  same ;  for  the  King's  supreme  and  royal  pleasure 
is  exercised  and  declared  in  this  High  Court  of  law  and 
council,  after  a  more  eminent  and  obligator}'  manner  than 
it  can  be  by  personal  act  or  resolution  of  his  own." 

These  words  do  not  contain  an  explicit  declaration  of  the 
sovereignty  of  the  people  or  of  parliament  but,  if  they  are 
to  be  scientifically  defended,  it  can  be  done  only  on  the  ground 
of  the  sovereignty  of  the  people  expressed  through  parlia- 
ment. What  these  words  really  say  is  that  sovereignty,  the 
right  of  supreme  and  final  decision,  is  exercised  by  par- 
liament, not  by  the  man  who  holds  the  name  and  title  of 
sovereign.  It  may  be  added  that  they  are  so  entirely  as- 
sumed to  be  true  in  the  present  English  government  that  the 
king  is  not  supposed  to  have. any  will,  or  opinion  even,  on  a 
political  question,  except  that  of  his  ministers. 

Before  war  actually  began,  parliament  presented  to  the 
king  their  final  demands  for  the  reconstruction  of  govern- 
ment in   the   so-called   Nineteen  Propositions.10      This   is   a 

•  Gardiner,   Documents,  245-247. 
10  Gardiner,  Documents,  249-254. 


318  THE  VICTORY  OF  PARLIAMENT 

most  interesting  document  as  showing  in  definite  and  formal 
statement,  no  doubt  carefully  drawn  up,  to  what  ideas  the 
conflict  with  the  king  had  led  regarding  the  kind  of  constitu- 
tion which  ought  to  be  given  the  state.  It  is  not  a  complete 
constitution  but  it  is  clearly  the  foundation  on  which  one 
could  easily  have  been  built.  Its  determining  principle  is  an 
unreserved  transfer  to  parliament,  not  merely  of  sovereignty, 
but  of  the  control  of  all  practical  details  in  daily  govern- 
ment, for,  where  such  a  transfer  is  not  expressly  provided 
for  in  the  document,  it  would  very  quickly  have  resulted. 
In  a  short  time  the  directly  acting  force  in  government  would 
have  been  parliament  not  the  king.  So  far  forth,  in  practical 
effect,  the  result  would  not  have  been  different  from  that  of 
the  present  English  constitution,  but  the  method  would  have 
been  wholly  different.  Everything  was  to  be  done  by  direct 
action  of  parliament  and  under  direct  responsibility  to  it. 
The  Nineteen  Propositions  have  been  called  a  new  edition  of 
the  Provisions  of  Oxford,  and  it  is  with  the  medieval  attempts 
to  limit  the  king  institutionally  that  they  belong.  All  privy 
councillors,  great  officers  and  chief  judges  were  to  be  ap- 
proved by  parliament.  No  new  peer  was  to  sit  and  vote 
without  parliamentary  consent.  The  fortresses  and  militia 
were  to  be  under  parliamentary  control,  and  the  church  was 
to  be  reformed  by  parliamentary  advice.  It  is  not  likely 
that  the  leaders  in  parliament  expected  the  king  to  accede 
to  their  proposals. 

The  war  went  against  the  king.  In  a  little  more  than 
two  years  he  was  obliged  to  surrender  himself  to  his  op- 
ponents. In  a  second  stage  of  the  war,  which  followed,  those 
of  the  presbvterian  puritans  and  their  Scottish  supporters 
who  were  ready  to  make  some  agreement  with  the  king  in 
the  hope  of  saving  a  national  church  organization,  were  de- 
feated, and  the  democratic  wing  of  the  puritan  party,  the 
independents  or  congregation alists  as  they  were  called  from 
their  ecclesiastical  teaching,  was  at  the  end  of  1648  in  sole 
possession  of  power. 


THE  INDEPENDENTS  319 

They  were  in  theory  democratic  both  in  their  ecclesiastical 
and  their  political  ideas.  In  the  government  of  their 
churches  they  were  able  to  carry  these  ideas  into  practice 
to  such  an  extent  as  not  merely  to  vest  the  control  of  each 
local  church  in  its  own  members,  but  to  make  the  individual 
church  organization  as  a  unit  independent  of  any  outside 
authority.  As  the  logical  result  of  such  a  practical  realiza- 
tion of  their  ideas,  they  were  split  into  numerous  sects  upon 
various  points  of  difference  which  appear  less  important 
today  than  in  the  seventeenth  century.  This  was  a  carry- 
ing of  the  fundamental  protestant  denial  of  the  right  of 
authority  in  matters  of  belief  to  its  logical  extreme.  In 
this  regard  they  represent  the  extreme  protestant  wing  of 
their  time.  But  in  another  respect,  because  they  carried 
on  here  also  the  protestant  position  to  a  logical  conclusion, 
they  are  less  typical  of  seventeenth  century  protestantism. 
They  believed  in  religious  as  fully  as  in  political  liberty. 
They  did  not  believe  in  a  national  church  for  themselves,  but 
they  did  not  object  to  sucli  an  organization,  provided  all 
churches  could  be  left  free  to  organize  as  they  thought  best. 
But.  in  the  practical  carrying  out  of  religious  liberty,  they 
could  not  be,  or  were  not,  as  logical  as  in  ecclesiastical  gov- 
ernment. They  looked  upon  episcopacy  with  suspicion  as 
tending  to  monarchy  or  to  Roman  Catholicism,  and  in  most 
cases  they  did  not  extend  their  toleration  beyond  protestant- 
ism. It  is  in  their  political  theories,  however,  as  developed 
in  numerous  discussions  in  voluntary  councils  in  the  army 
and  in  publications  of  all  sorts,  that  the  ideas  which  had 
been  gradually  evolved  since  the  accession  of  James  I  were 
carried  most  nearly  to  their  logical  conclusions  and  most 
nearly  to  the  results  first  permanently  reached  in  America. 
At  the  beginning  of  the  second  civil  war  the  independents 
had  control  of  the  army  under  Cromwell  and  the  presby- 
terians  of  the  parliament. 

The  victorious  army  returned  from  the  field  very  angry 
with   the   king   and  with  the  presbyterian  puritans,   whom 


320  THE  VICTORY  OF  PARLIAMENT 

together  they  held  responsible  for  what  they  believed  to  be 
the  unnecessary  sacrifices  of  the  second  war,  and  they  imme- 
diately proceeded  against  both.  First  the  presbyterians 
were  all  expelled  from  parliament.  Col.  Pride  with  a  com- 
pany of  troops  at  the  door  of  the  house,  arrested  some  and 
turned  back  others,  on  December  6,  1648,  leaving  of  the 
Long  Parliament  the  independents  only,  about  one-eighth 
the  original  number.  This  really  powerless  remnant  came  to 
be  known  as  the  Rump.  Then  in  a  second  step  they  consti- 
tuted a  court  to  try  the  king  for  treason  1X  —  a  court  in  its 
fundamental  character  not  unlike  the  star  chamber  which 
they  had  assisted  to  abolish.  The  accusation  was  treason  in 
the  sense  of  Strafford's  treason,  against  the  nation  and  the 
fundamental  laws,  not  against  the  sovereign  person.  In 
the  formal  charge  before  the  court  they  said :  "  That  the 
said  Charles  Stuart,  being  admitted  King  of  England,  and 
therein  trusted  with  a  limited  power  to  govern  by,  and 
according  to  the  laws  of  the  land,  and  not  otherwise :  .  .  . 
yet,  nevertheless,  out  of  a  wicked  design  to  erect  and  uphold 
in  himself  an  unlimited  and  tyrannical  power  to  rule  accord- 
ing to  his  will,  and  to  overthrow  the  rights  and  liberties  of 
the  people,  .  .  .  which  by  the  fundamental  constitutions  of 
this  kingdom  were  reserved  on  the  people's  behalf  in  the  right 
and  power  of  frequent  and  successive  Parliaments ;  .  .  .  he, 
the  said  Charles  Stuart,  for  the  accomplishment  of  such  his 
designs  .  .  .  hath  traitorously  and  maliciously  levied  war 
against  the  present  parliament,  and  the  people  therein  rep- 
resented." 12 

The  king,  who  resolutely  refused  to  recognize  the  court, 
was  sentenced  on  January  27  and  executed  on  the  30th,  1649. 

In  trying  the  king  upon  a  charge  of  this  kind,  the  inde- 
pendents necessarily  broke  with  the  history  of  the  past, 
with  established  form  and  precedent,  even  more  completely 
than  they  had  done  before.     The  house  of  lords,  even  the 

ii  A.  and  S.,  389-390;  Gardiner,  Documents,  357-358., 
\z  Gardiner,  Documents,  371-374.. 


SOVEREIGNTY  OF  THE  PEOPLE  321 

little  fraction  left  in  that  house,  would  not  go  so  far.  All 
government,  even  before  the  trial  of  the  king,  was  reduced 
to  one  house  and  its  appointees,  and  again  a  declaration  was 
adopted  in  defence  of  this  position,  having  especially  in  mind 
the  trial  of  the  king.  The  house  of  commons,  resolved  on 
January  4  "  that  the  people  are,  under  God,  the  original  of 
all  just  power;  that  the  commons  of  England,  in  parliament 
assembled,  being  chosen  by  and  representing  the  people,  have 
the  supreme  power  in  this  nation ;  that  whatsoever  is  enacted 
or  declared  for  law  by  the  commons  in  parliament  assembled, 
hath  the  force  of  law,  and  all  the  people  of  this  nation  are 
concluded  thereby,  although  the  consent  of  the  king  or 
house  of  Peers  be  not  had  thereunto."  But  already  by  this 
time  the  sovereignty  of  the  people  and  the  delegated  char- 
acter of  government  had  been  expressed  clearly  and  fully  by 
so  many  mouths  and  pens  that  there  can  be  no  doubt  it 
had  become  one  of  the  ruling  ideas  of  the  party.  It  had 
been  stated  ten  years  before  by  Thomas  Hooker  in  a  sermon 
which  he  preached  not  long  after  his  arrival  in  Connecticut 
in  this  way :  "  They  who  have  the  power  to  appoint  officers 
and  magistrates,  it  is  in  their  power  also  to  set  the  bounds 
and  limitations  of  the  power  and  place  unto  which  they  call 
them.  And  this,  in  the  first  place,  because  the  principle  of 
authority  resides  in  the  free  consent  of  the  people."  Hardly 
a  more  striking  example  can  be  had  of  the  transfer  of  puritan 
ideas  of  government  to  new  influence  and  power  in  America. 

It  is  hardly  possible  today  to  do  better  than  these  state- 
ments in  formulation  of  the  principle  of  the  sovereignty  of 
the  people  and  of  the  representative  character  and  derived 
powers  of  the  legislature.  We  must  remember,  however,  that 
in  England  such  ideas  were  revolutionary.  The  new  consti- 
tution which  was  foreshadowed  by  them  was  a  break  with 
past  history  and,  however  logically  involved  in  that  past, 
as  an  experiment  in  actual  government  it  had  not  been  pre- 
pared for  as  yet  in  national  experience  or  in  institutions  by 
an  adequate  political  development.     In  the  details  of  this 


322  THE  VICTORY  OF  PARLIAMENT 

advance  the  independents  were  influenced  by  their  religious, 
as  well  as  by  their  political  training.  After  a  long,  slow 
process  of  growth  towards  democracy,  which  was  not  to  be 
begun  for  more  than  a  hundred  years,  England  was  to  come 
in  the  nineteenth  century  in  reality  to  these  principles,  though 
not  in  avowed  law  and  not  along  a  road  which  led  through 
this  age  of  revolution.  It  was  American,  not  English,  con- 
stitutional law  which  was  here  making  its  first  beginning,  its 
first  essays  in  imperfect  and  half  conscious  formulation,  and 
it  was  in  America  that  these  principles  were  developed  from 
this  beginning  in  unbroken  growth  into  the  government  of  a 
great  people. 

No  one  is  called  upon  to  defend  or  even  to  discuss  the 
execution  of  the  king.  Such  justification  as  it  has  is  to  be 
drawn  from  the  fact  of  revolution,  of  which  it  was  an  extreme, 
perhaps  an  unnecessary  act.  But  the  revolution  itself  was 
necessary.  The  issue  had  been  so  sharply  drawn,  the  king 
was  so  deeply  pledged  to  his  view  of  the  monarchy,  and  his 
character  was  so  untrustworthy  and  within  a  narrow  range 
so  obstinate,  that  the  only  chance,  not  merely  for  the  suc- 
cess of  the  puritan  idea  of  what  the  character  of  the  govern- 
ment should  be,  but  for  the  successful  realization  in  constitu- 
tional practice  of  those  checks  upon  absolute  power  which 
the  progress  of  the  past  had  made  ready,  lay  in  pushing  the 
struggle  to  an  extreme  which,  to  the  men  then  in  power, 
involved  the  death  of  the  king.  Even  upon  the  scaffold 
Charles  insisted  upon  his  interpretation  of  the  constitution 
and  stated  it  with  admirable  clearness.  "  For  the  people," 
he  said,  "  truly  I  desire  their  liberty  and  freedom  as  much  as 
anybody  whatsoever,  but  I  must  tell  you  their  liberty  and 
freedom  consists  in  having  government,  those  laws  by  which 
their  lives  and  their  goods  may  be  most  their  own.  It  is 
not  their  having  a  share  in  the  government,  that  is  nothfng 
appertaining  to  them.  A  subject  and  a  sovereign  are  clear 
different  things." 

The  execution  of  the  king  and  the  disappearance  of  the 


THE  WRITTEN  CONSTITUTION  323 

house  of  lords,  left  the  house  of  commons  the  sole  survivor 
of  the  national  authorities  of  the  old  constitution.  But  the 
house  of  commons  was  the  Rump  merely,  the  independent 
members,  and  the  real  power  in  the  state  was  undoubtedly 
the  army  and  its  leading  officers.  But  the  chief  influences 
in  army  circles  had  been  for  a  long  time  democratic,  and 
years  before  it  succeeded  to  power  individuals  and  councils 
had  been  busy  considering  the  foundations  of  government 
and  the  forms  it  should  assume.  A  flood  of  proposals, 
theories,  and  arguments  appeared  in  those  years,  as  charac- 
teristic in  tone  and  substance  of  an  age  of  religious,  as  of 
political  revolution.  For  the  puritan,  especially  for  the  inde- 
pendent, this  age  was  both,  and  the  results  he  attempted 
to  accomplish  in  constitution  making  are  a  compound  of  the 
conclusions  to  which  the  tendencies  of  English  history  would 
naturally  lead,  prematurely  conceived,  and  the  ideas  which 
he  drew  from  the  Bible  and  applied  in  the  organization  of 
his  churches.  Already  before  this  date,  even  before  the 
beginning  of  the  war,  members  of  the  party  had  begun  to 
return  from  the  American  colonics  bringing  with  them,  not  so 
much  new  ideas  and  principles  for  these  they  had  carried  from 
Old  to  New  England,  as  reports  of  the  logical  carrying  out 
of  their  principles  in  actual  governments  and  encouragement 
that  they  had  and  would  work  in  practice. 

Of  these  suggestions,  the  most  formal  and  developed  as 
a  proposal  to  be  carried  out  in  government,  was  that  which 
was  presented  to  the  house  of  commons  in  January,  1649, 
under  the  title,  "  The  Agreement  of  the  People."  13  This 
title  conveys  to  us  less  clearly  than  it  did  to  contemporaries 
what  the  document  was  intended  to  accomplish  ;  but  it  implies 
and  was  intended  to  imply  what  the  preamble  of  the  Ameri- 
can constitution  asserts:  "We  the  people  of  the  United 
States  do  ordain  and  establish  this  Constitution."  It  im- 
plied that  the  people  of  England  by  an  agreement  formally 
entered  into  were  to  make  a  written  constitution  in  order 
is  Gardiner,  Documents,  359-371. 


324  THE  VICTORY  OF  PARLIAMENT 

to  establish  a  government  and  define  its  powers.  As  a  pro- 
posal for  actual  government,  we  need  not  consider  the  Agree- 
ment of  the  People,  for  it  was  never  put  into  operation,  but 
as  a  landmark  in  the  history  of  American  constitutional  law 
it  is  of  great  importance.  The  foundation  upon  which  it 
rested,  the  agreement  of  the  people,  is  the  same  as  that  upon 
which  our  constitutions  rest,  and  it  was  here  proposed  for 
the  first  time  in  history  as  the  foundation  of  a  national 
government.  The  similar  compacts  which  had  preceded  it 
in  America,  though  they  came  from  the  same  ultimate  sources 
and  were  truly  intended  to  establish  "  a  Civil  Body  Politick," 
served  for  little  communities  of  people  in  which  an  actual 
democracy  was  entirely  feasible,  and  representative  institu- 
tions, as  an  expedient  for  working  a  democracy  on  a  great 
scale,  had  no  need  to  be  considered  for  a  long  time.  The 
Agreement  of  the  People  was  seriously  intended  as  the  con- 
stitution of  a  great  nation. 

It  must  be  regarded,  however,  as  more  than  merely  the 
first  written  constitution  proposed  for  a  great  state.  It  was 
a  constitution  distinctly  of  the  American  type.  It  proceeds 
throughout  explicitly  on  the  principle  that  the  source  of  all 
government  is  the  people;  that  the  people  by  their  agreement 
together  create  the  government ;  and  that  they  have  the 
right  not  merely  to  clothe  the  government  with  powers  but 
also  to  fix  limitations  upon  its  action  which  it  must  not  exceed. 
It  explicitly  declares  that  certain  numbered  particulars  "  are, 
and  shall  be,  understood  to  be  excepted  and  reserved  from 
our  Representatives."  It  also  expressly  states  that  certain 
portions  of  the  document,  considered  "  fundamental  to  our 
common  right,  liberty,  and  safety,"  are  beyond  the  power 
of  their  representatives  to  alter.  In  this  respect,  like  the 
United  States,  the  framers  carried  the  principle  of  the  sov- 
ereignty of  the  people  a  stage  farther  than  England  has 
yet  gone,  making  the  formation  and  reconstruction  of  the 
constitution  an  act  which  must  come  in  special  and  separate 
form  directly  from  the  people.      If  the  government  conceived 


THE  COMMONWEALTH  325 

of  in  the  Agreement  of  the  People  could  have  been  put  into 
operation  with  sufficient  national  force  to  support  it,  and 
developed  as  it  naturally  would  have  been  by  experience,  it 
would  have  made  real  in  the  seventeenth  century  a  govern- 
ment of  the  people,  by  the  people,  and  for  the  people.  It  was 
in  its  nature  and  in  its  freedom  from  certain  limitations 
more  likely  to  attain  this  end  than  the  Instrument  of  Govern- 
ment afterwards  founded  upon  it. 

The  Agreement  of  the  People  was  never  put  into  opera- 
tion. It  was  the  programme,  not  of  the  majority  of  the 
independent  party,  but  of  the  more  radical  extremists,  and 
the  time,  still  full  of  dangers  for  a  revolutionary  govern- 
ment which  represented  only  a  minority  of  the  nation,  was 
unpropitious  for  new  political  experiments.  The  great  prac- 
tical problem  of  the  day  was  to  make  sure,  if  possible,  that 
the  fragments  of  the  constituted  authorities  which  remained 
in  power  should  maintain  themselves  and  enforce  peace  and 
order  throughout  the  country.  This  was  the  task  of  the 
army,  and  the  government  which  followed  under  the  Com- 
monwealth and  the  Protectorate  was  really  the  government 
of  the  army.  On  February  13  the  Rump  appointed  a  council 
of  state  to  govern  the  country ;  on  March  17  it  abolished  the 
office  of  king;  on  March  19  it  abolished  the  house  of  lords; 
and  on  May  19  it  declared  that  "  the  people  of  England  and 
of  all  the  dominions  and  territories  thereunto  belonging,  are 
and  shall  be,  and  are  hereby  constituted  ...  to  be  a  Com- 
monwealth and  Free  State,  and  shall  from  henceforth  be 
governed  as  a  Commonwealth  and  Free  State  by  the  supreme 
authority  of  this  nation,  the  representatives  of  the  people  in 
Parliament,  and  by  such  as  they  shall  appoint  and  constitute 
as  officers  and  ministers  under  them  for  the  good  of  the  peo- 
ple." These  changes  were  really  made  necessary  by  the 
situation.  There  could  no  longer  be  any  pretence  of  gov- 
ernment by  a  king. 

But  if  the  government  was  to  be  in  theory  a  government 
of  and  by  the  people,  it  was  in  reality  a  military  autocracy, 


326  THE  VICTORY  OF  PARLIAMENT 

and  it  is  doubtless  true  that  that  was  the  only  revolutionary 
government  which  could  have  kept  itself  in  power.  Crom- 
well regarded  himself  by  virtue  of  his  commission  from  the 
old  undivided  parliament  as  more  truly  the  one  regularly 
constituted  authority  than  the  fragment  of  the  parliament. 
On  April  20,  1653,  he  expelled  by  military  force  the  Rump, 
which  had  lingered  to  that  date  though  with  little  power. 
On  July  5  a  new  parliament  met,  known  as  the  "  Little  "  or 
Barebone's  parliament,  and  composed  of  persons  appointed 
to  membership  from  lists  drawn  up  by  the  independent 
churches.  It  did,  however,  little  except  to  debate  a  series 
of  reforms  most  of  them  far  in  advance  of  the  times  and  was 
dissolved  by  its  own  act  on  December  12.  Almost  immedi- 
ately thereafter  a  new  written  constitution  which  had  been 
prepared  by  the  leaders  of  the  army  was  brought  forward 
and  accepted  by  Cromwell.  This  was  the  Instrument  of 
Government  which  was  put  into  force  by  Cromwell  and  his 
council  without  being  referred  for  sanction  either  to  a  par- 
liament or  to  the  people.14 

All  discussion  of  the  Instrument  of  Government  must  be 
prefaced  by  the  statement  that  it  had  no  influence  on  the 
constitutional  history  of  England.  The  experiments  in  gov- 
ernment which  followed  the  outbreak  of  the  civil  war  are 
an  offshoot  from  the  main  line  of  English  history  and  they 
lead  nowhere  in  that  country.  They  are,  however,  an  off- 
shoot which  grows  as  naturally  and  normally  from  the  main 
trunk  as  docs  the  continuation  of  that  itself.  They  are  of 
especial  value  as  showing,  in  the  middle  of  the  seventeenth 
century,  what  was  even  then,  and  has  been  since  more  abun- 
dantly, made  evident  in  the  colonies.  They  show  what  sort 
of  a  government  the  historical  constitution  of  England,  even 
as  it  then  existed,  logically  would  lead  to,  when  it  cut  itself 
off  from  the  monarchy  and  its  theories  of  sovereignt}\  For 
the  American  student  the  Instrument  of  Government  has  a 
peculiar  interest  for  several  reasons.  It  is  the  first  written 
"  A.  and  S.,  407-416;  Gardiner,  Documents,  405-417. 


THE  INSTRUMENT  OF  GOVERNMENT      327 

constitution,  creating  a  government  in  theory  of  delegated 
powers  defined  and  limited,  put  into  actual  operation  for  a 
great  nation.  It  formed  nominally  at  least  the  basis  of  the 
government  of  England  for  something  more  than  three  years. 
Of  it  it  may  be  said  as  truly  as  it  has  been  said  of  the  con- 
stitution of  the  United  States:  "Thus  these  men  at  Phila- 
delphia were  in  theory  completing  the  historical  process  that 
had  been  working  out  in  English  history  since  the  meeting 
of  the  barons  with  John  Lackland  at  Runnymede.  The 
long  effort  to  establish  a  government  of  law  and  not  of  men 
was  reaching  its  logical  conclusion  in  an  effort  to  make  the 
government  itself  dependent  on  fundamental  law."  Of  equal 
interest  and  significance  are  the  anticipations  of  what  we 
sometimes  consider  American  innovations  and  discoveries  in 
the  practical  workings  of  government,  showing  almost  more 
clearly  than  matters  more  vital  from  what  stock  we  have 
grown. 

The  important  points  of  the  Instrument  may  be  briefly 
stated.  Article  I  provides  that  the  supreme  legislative 
authority  of  the  Commonwealth  of  England,  Scotland  and 
Ireland  and  the  dominions  thereto  belonging  shall  be  and 
reside  in  one  person,  the  lord  protector,  and  "  the  people 
assembled  in  parliament."  The  source  of  authority  both 
for  the  constitution  and  for  parliament  is  thus  stated  to  be 
the  people,  and  the  united  government  of  England,  Scotland 
and  Ireland,  which  had  been  already  brought  about  in  fact, 
is  recognized  in  law.  The  functions  and  powers  of  the  pro- 
tector and  his  council  in  the  executive  government  are  then 
stated  with  their  limitations.  Often  he  is  required  to  act 
with  the  advice  or  consent  of  parliament.  The  modern  legis- 
lature cannot  be  dissolved  without  its  own  consent ;  the  pro- 
tector could  not  dissolve  his  until  after  a  sitting  of  five 
months.  The  distribution  of  representation  was  decidedly 
changed  and  roughly  fixed  according  to  the  distribution  of 
population.  Many  small  boroughs  were  disfranchised,  new 
growing  towns  like  Leeds  and  Manchester  received  represent- 


328  THE  VICTORY  OF  PARLIAMENT 

ation,  and  the  county  representation  was  enlarged.  The  old 
parliament  contained  413  borough  members  and  9&  county, 
the  new  135  borough  and  238  county  members.  The 
franchise  was  considerably  restricted.  A  property  qualifi- 
cation of  £200  was  required  of  all  electors.  All  who  had 
taken  part  in  the  war  against  parliament  were  disfranchised 
for  four  parliamentary  elections,  and  all  who  had  aided  the 
rebellion  in  Ireland  and  all  Roman  Catholics  permanently. 

All  bills  passed  by  parliament  were  to  be  sent  to  the  pro- 
tector for  his  consent.  If  he  did  not  give  his  consent  within 
twenty  days,  or  "  give  satisfaction  to  the  parliament  within 
the  time  limited,"  they  should  become  laws  without  his  con- 
sent, "  provided  such  Bills  contain  nothing  in  them  contrary 
to  the  matters  contained  in  these  presents."  Two  clauses 
in  this  Article  require  especial  notice.  One  provides  for  a 
limited  veto.  "  Give  satisfaction  to  the  parliament  "  implies 
the  right  of  the  protector  to  persuade  the  parliament,  as  in 
the  veto  message  of  American  practice,  to  abandon  the 
measure,  but  an  ordinary  majority  merely  would  override  his 
veto.  The  other  provides  that  unconstitutional  bills  shall 
not  become  law.  As  in  the  American  constitution,  no  pro- 
vision is  made  for  any  authority  to  decide  what  bills  are 
unconstitutional,  but  in  time  undoubtedly  the  courts  would 
have  assumed  the  duty.  The  Instrument  provides  no  way  in 
which  it  can  be  amended,  and  some  have  taken  this  clause  to 
forbid  all  amendment.  It  is  highly  probable,  however,  that 
courts  of  law,  called  upon  to  interpret  it,  would  have  said 
that  it  prevents  the  passage  of  an  unconstitutional  act  over 
the  protector's  veto,  and  that  by  inference  the  Instrument 
could  be  amended  by  parliament  with  the  protector's  consent. 
Parliament  shared  directly  in  the  appointment  of  the  mem- 
bers of  the  council  and  must  approve  the  appointments  to  the 
chief  offices  of  state.  Religious  liberty  was  granted  to  all 
"  such  as  profess  faith  in  God  by  Jesus  Christ,"  with  a  pro- 
viso that  "  this  liberty  be  not  extended  to  Popery  or  Prelacy." 
The   logical   effect   of   such    a   constitution,    as    it    would 


THE  SEAT  OF  SOVEREIGNTY  329 

naturall}'  develop,  would  be  to  transfer  the  sovereignty  not 
merely  in  fact  but  in  form  from  parliament  to  the  people. 
Parliament,  as  subject  to  the  fundamental  law  established 
by  the  people,  could  not  occupy  the  place  of  ultimate  su- 
preme authority,  could  not  be  the  last  resort  in  the  decision 
of  doubtful  questions  or  policies.  In  truth  this  was  the 
effect  of  the  puritan  revolution,  though  the  written  consti- 
tution disappeared,  and  though  the  fact  was  not  and  never 
has  been  expressed  in  form  nor  acknowledged  in  theory  in 
England.  As  Professor  Dicey  has  said  in  his  Law  of  the 
Constitution:  "  in  a  legal  point  of  view  parliament  is  neither 
the  agent  of  the  electors  nor  in  any  sense  a  trustee  for  its 
constituents.  It  is  legally  the  sovereign  power  of  the  state." 
Mr.  Dicey  did,  however,  consent  to  a  distinction  between 
legal  and  practical  sovereignty,  the  practical  sovereignty 
residing  in  the  electors.  The  true  test  of  course  is  to  dis- 
cover in  a  final  conflict  of  authority  which  of  the  two  must 
yield  to  the  other.      Of  that  there  can  be  no  doubt. 

Outside  the  written  constitution,  in  acts  passed  by  one 
or  another  parliament,  or  in  measures  proposed  but  not 
adopted,  there  were  other  anticipations  of  changes  which 
have  been  in  recent  times  carried  through :  Free  public 
schools  ;  a  public  post  office  ;  public  work  for  the  employment 
of  the  poor ;  female  suffrage  ;  voting  by  ballot ;  the  establish- 
ment of  a  national  bank ;  freedom  of  the  press  ;  freedom  of 
trade,  but  with  the  reenactment  of  the  navigation  laws;  the 
removal  of  religious  disabilities  in  principle  but  incomplete 
in  practice ;  the  improvement  of  local  government ;  a  system 
of  recording  land  transfers ;  a  simplification  of  marriage 
laws ;  and  the  local  registry  of  vital  statistics.  In  the 
sphere  of  government  and  law  there  were  equally  modern 
measures  or  proposals ;  a  great  extension  of  the  use  of  com- 
mittees in  parliamentary  business;  the  enactment  of  an  excise 
tax,  a  drastic  reform  of  procedure  in  the  courts  to  remove 
causes  of  delay  and  cost,  and  all  to  be  in  English ;  a  simplifi- 
cation of  appeals ;  steps  towards  the  union  of  equity  and 


330  THE  VICTORY  OF  PARLIAMENT 

common  law ;  a  new  secular  court  of  probate;  the  payment  of 
judges  by  fixed  salaries,  no  longer  by  fees,  and  tenure  during 
good  behavior ;  more  liberal  means  of  defence  to  persons  ac- 
cused of  crime ;  better  facilities  for  the  collection  of  debts ; 
and  prison  reform  and  the  relief  of  prisoners  for  debt.  In- 
teresting anticipations  of  ideas  sometimes  thought  to  be 
peculiarly  American  are  the  declaration  in  a  parliamentary 
debate  in  1647  that  "  a  man  is  not  bound  to  a  government 
that  he  has  not  had  a  voice  to  put  himself  under,"  and  the 
lines  in  Edmund  Waller's  Panegyric  on  Cromwell,  which 
anticipate  also  American  language: 

Whether  this  portion  of  the  world  were  rent 
By  the  rude  Ocean  from  the  continent; 
Or  thus  created,  it  was  sure  designed 
To  be  the  sacred  refuge  of  mankind. 
Hither  the  oppressed  shall  henceforth  resort 
Justice  to  crave,  and  succour  at  your  court. 

The  list  is  not  complete,  and  comparatively  few  of  these 
proposals  passed  into  actual  statute  law,  but  it  is  sufficient 
to  show  both  the  activity  of  mind  upon  governmental  prob- 
lems in  this  revolutionary  age,  and  how  thoroughly  the  think- 
ing of  the  time  was  in  line  with  the  constitutional  and  legal 
progress  which  was  to  follow,  more  naturally  and  normally, 
in  less  revolutionary  ways,  in  the  coming  centuries.  It  may 
be  said  indeed  that  the  greatest  obstacle  in  the  way  of  carry- 
ing out  the  puritan  plans  of  reform  was  the  puritan  activity 
of  mind.  Their  parliamentary  assemblies  are  all  charac- 
terized by  endless  debate  which  led  to  no  practical  con- 
clusion. The  first  parliament  under  the  Instrument  of  Gov- 
ernment insisted  so  obstinately  on  debating  the  constitutional 
law  of  that  document  and  its  possible  amendment,  against 
the  expressed  desire  of  the  protector,  that  it  was  finally  sent 
home  with  nothing  done.  The  second  parliament,  in  which 
a  house  of  lords  was  reestablished,  was  not  much  better. 
While  the  executive  during  the  Commonwealth  and  Protec- 


TERMANENT  RESULTS  331 

toratc  accomplished  good  things  in  practical  government  and 
in  foreign  affairs,  the  nation  was  tired  out  with  the  useless 
wrangles  among  the  sects  and  parties,  and,  as  no  successor  to 
Cromwell  rose  to  continue  his  vigorous  executive  policy,  the 
monarchy  was  easily  restored. 

There  will  be  occasion  in  what  follows  to  discuss  some 
details  in  which  there  may  be  seen  permanent  results  which 
are  to  be  traced  to  the  period  between  1640  and  1660.  Mr. 
Taswell-Langmead  in  his  Constitutional  History  states  four 
further  general  results  which  he  believes  to  have  been  per- 
manent. 1.  "  Although  the  cause  of  monarchy  was  gained, 
that  of  absolute  monarchy  was  lost  forever."  This  is  quite 
true,  but  its  truth  was  not  so  apparent  at  the  time  as  it  is 
to  us.  The  struggle  with  absolute  monarchy  was  by  no 
means  over  and  though  the  struggle  was  really  without  hope 
of  success  for  the  king  some  of  its  most  desperate  phases, 
as  they  would  seem  to  contemporaries,  were  immediately 
before  the  nation.  2.  "  The  predominant  influence  of  the 
house  of  commons  in  the  government  of  the  nation  was  per- 
manently established."  This  also  is  a  fact  perceived  only 
bv  the  historian  as  he  looks  back  from  the  vantage  ground 
reached  by  a  later  progress.-  It  was  not  understood  at  the 
time  nor  fully,  with  reference  to  practical  government,  for 
more  than  a  century.  These  two  are  the  most  far-reaching 
and  fundamental  results  of  the  conflict  between  parliament 
and  king  in  the  seventeenth  century,  and  they  settled  per- 
manently the  character  of  the  English  constitution.  3. 
"  The  complete  and  definite  rejection  of  Romanism  in  Eng- 
land was  assured;  but  the  position  of  the  National  Church 
after  the  Restoration  was  no  longer  precisely  the  same  as 
before  the  Rebellion."  The  fear  of  the  political  designs 
of  Romanism  was,  however,  not  yet  over,  and  the  national 
judgment  that  it  is  a  danger  in  the  state  was  to  be  further 
strengthened  in  the  following  period.  The  last  clause  will 
be  discussed  later.  4.  "  The  development  of  an  intense 
national  antipathy  to  a  standing  army  and  of  widespread 


332  THE  VICTORY  OF  PARLIAMENT 

distrust  of  men  of  extreme  views."  The  antipathy  to  a 
standing  army  and  opposition  to  it  were  to  be  greatly  in- 
creased in  the  following  generation,  with  seriously  incon- 
venient results  both  in  England  and  America. 

To  this  statement  of  permanent  results  there  may  be  added 
others:  1.  All  financial  independence  of  the  king  was  at  an 
end.  The  struggle  over  this  matter  which  had  lasted  from 
the  reign  of  Edward  I  was  at  last  over.  No  later  English 
king,  if  we  make  an  insignificant  exception  for  James  II,  has 
attempted  to  raise  a  revenue,  independent  of  parliamentary 
action.  2.  The  prerogative  courts,  and  with  them  all  danger 
from  the  prerogative,  were  permanently  done  away  with.  A 
slight  exception  for  the  next  generation  must  also  be  made 
here,  but  the  effort  of  the  sovereign  to  make  use  of  the 
prerogative  was  without  avail.  Such  possibilities  of  pre- 
rogative action  as  remained  have  been,  since  1688  at  least, 
under  parliamentary  control.  3.  It  was  definitely  settled 
that  England  was  not  to  be  a  republic.  In  one  sense  the 
logical  drift  of  English  constitutional  development  was  to- 
wards a  republic,  but  the  institutional  changes  which  fol- 
lowed the  Restoration  and  which  gave  expression  in  govern- 
mental machinery  to  the  Restoration  settlement  made  such 
a  result  for  long  impossible  and,  even  after  two  more  centuries 
and  a  half,  highly  improbable.  How  this  came  about  is  the 
theme  in  large  part  of  the  history  which  follows. 

The  puritan  revolution  of  these  twenty  years  marks  the 
division  of  the  stream  of  English  constitutional  development 
into  two  branches.  For  England  it  was  an  attempt  to  arrive 
at  the  logical  conclusions  of  that  development  prematurely, 
by  violence  and  revolution,  under  the  stimulus  of  religious  as 
well  as  political  excitement,  before  an  adequate  preparation 
in  ideas  and  institutions  had  made  the  ground  ready.  In  the 
reaction  which  naturally  followed,  the  work  of  the  revolution 
was  undone.  Constitutional  development  linked  itself  back 
to  the  results  of  its  more  natural  processes  in  the  stage  which 
it  had  reached  at  the  end  of  the  first  session  of  the  Long 


• 


RESULTS  IN  AMERICA  333 

Parliament  in  164-1.  Nearly  everything  for  which  the 
revolution  strove  is  now  a  part  of  the  English  constitution, 
but  not  as  a  result  of  its  endeavor.  Rather  as  a  result  of 
the  slower  and  more  normal  process  of  growth,  out  of  which 
in  a  sense  the  revolution  indeed  came  but  which  it  for  a  mo- 
ment interrupted.  In  the  puritan  and  quaker  colonies  of 
America  the  ideas  of  this  revolution  created  the  natural 
political  atmosphere.  There  they  were  not  revolutionary, 
but  became  the  material  from  which  the  normal  constitutional 
life  of  these  little  states  drew  its  strength.  Their  natural 
political  development  began  with  these  ideas  and  led,  as  their 
population  and  needs  increased,  to  more  and  more  extensive 
realization  of  them  in  practice,  until  at  the  last  they  had  large 
share,  with  other  influences,  in  shaping  the  institutions  of 
the  second  great  Anglo-Saxon  nation. 

Bibliographical  Note. —  C.  Borgeaud,  The  Rise  of  Modern 
Democracy  in  Old  and  Neiv  England,  1894.  L.  F.  Brown, 
Baptists  and  Fifth  Monarchy  Men,  1912.  C  H.  Firth,  Oliver 
Cromwell,  1905;  The  Last  Years  of  the  Protectorate,  1909; 
The  House  of  Lords  during  the  Civil  War,  1910.  S.  R.  Gardi- 
ner, The  Great  Civil  War,  4  vols.,  1886;  The  Commonwealth  and 
Protectorate,  3  vols.,  1894-1903.  G.  P.  Gooch,  English  Demo- 
cratic  Ideas  in  the  Seventeenth  Century,  1898.  E.  Jenks,  Con- 
stitutional Experiments  of  the  Commonwealth,  1890.  C.  H. 
Mcllwain,  The  High  Court  of  Parliament,  1910.  T.  C.  Pease, 
The  Leveller  Movement,  1916. 


CHAPTER  XIV 
THE  VICTORY  CONFIRMED 

The  extent  of  the  reaction  against  the  radical  party  was 
shown  by  the  character  of  the  restoration  of  Charles  II  in 
1660.  The  king  was  restored  to  the  throne  with  no  con- 
stitutional guarantees  whatever.  Nothing  was  said  of  the 
sins  of  his  father,  nor  of  the  principles  which  the  great  ma- 
jority of  the  house  of  commons  were  determined  to  defend 
in  1640.  The  legislation  of  the  first  session  of  that  parlia- 
ment remained  on  the  statute  books,  and  arbitrary  govern- 
ment was  to  that  extent  deprived  of  the  means  of  operation. 
But  the  supremacy  of  parliament  was  not  declared  in  any 
formal  statement,  nor  was  the  king  required  to  acknowledge 
that  his  powers  were  limited  or  derived  from  the  people. 
So  far  as  formal  pledges  are  concerned,  or  formal  statements 
even,  with  which  the  new  government  began,  there  was  noth- 
ing to  indicate  that  anything  of  a  constitutional  character 
had  happened  since  the  first  of  November,  1641. 

Much  had  happened,  however,  which  affected  the  minds 
of  men  and  which  could  not  be  forgotten.  Charles's  state- 
ment that  he  had  no  wish  to  go  on  his  travels  again  is  not  of 
chief  interest  as  the  sign  of  a  cynical  character.  It  was  his 
expression  of  a  profound  political  observation  which  judged 
correctly  the  actual  state  of  things.  Charles  knew  that  a 
great  constitutional  change  had  taken  place,  though  per- 
haps he  could  not  have  called  it  that  nor  defined  very  clearly 
its  nature.  What  he  did  know  very  assuredly  was  that  he 
could  not  resist  the  will  of  parliament  beyond  a  certain  point, 
and  by  that  knowledge  he  shaped  his  conduct.  It  was  not 
that  he  was  any  more  willing  than  his  father  to  submit  to 

334 


A  COMPROMISE  IN  FORM  335 

the  authority  of  parliament  or  any  the  less  determined  to  re- 
establish an  irresponsible  royal  power.  He  had  a  keener 
political  insight  and  recognized  more  quickly  the  limits  of 
the  possible  and  understood  the  consequences  of  overstepping 
them.  And  so  when  a  parliament,  which  was  usually  ready 
to  do  what  he  wished,  objected  strenuously  when  he  under- 
took to  relieve  the  nonconformists  of  their  legal  disabilities 
by  proclamation,  he  yielded  and  withdrew  from  his  attempts. 

Such  an  act  on  the  part  of  the  king  was  highly  typical 
of  the  actual  situation  as  it  had  been  left  by  the  Restoration, 
not  in  law  or  formal  statement,  but  in  the  facts  themselves. 
In  form  and  law  the  king  was  supreme  and  sovereign.  In 
fact  parliament  was  supreme.  The  sovereignty  in  the  state, 
the  power  of  final  decision  on  every  political  question,  if  an 
issue  arose  upon  it,  had  been  transferred  to  it.  Never  since 
that  date  has  it  been  possible  for  the  king,  so  long  as  the 
king  remained  the  real  executive,  nor  for  the  ministry  after 
the  cabinet  had  absorbed  the  executive  authority,  to  with- 
stand the  convinced  will  of  parliament.  No  period  of  later 
history,  not  even  the  most  modern,  reveals  this  result  more 
clearly  than  that  which  followed  first,  in  which  the  attempt 
of  Charles  I's  sons  to  reestablish  the  old  royal  power  met 
with  disastrous  failure. 

The  result  in  1660  just  described  was  a  compromise;  not 
less  truly  a  compromise  because  it  was  expressed  in  facts 
rather  than  in  words.  The  question  which  had  arisen  at  the 
beginning  of  the  reign  of  James  I,  whether  it  would  be  pos- 
sible to  make  the  strong  monarchy  of  the  sixteenth  century 
and  the  strong  parliamentary  control  of  the  fifteenth  work 
together  in  practice  —  what  boundary  line  could  be  found 
between  king  and  constitution  —  had  been  answered  by  the 
discovery  of  a  compromise.  But  it  was  a  compromise  of  a 
peculiar  type.  As  developed  in  the  next  hundred  and  fifty 
years,  it  meant  that  form  and  appearance  remained  with  the 
king,  the  reality  with  parliament.  The  words  in  which  the 
modern  constitutional  lawyer  states  the  result  are  as  accurate 


336  THE  VICTORY  CONFIRMED 

as  can  be  found :  "  Sovereignty  resides  in  the  king  in  his 
parliament."  The  king  is  in  theory  sovereign,  but  his  sover- 
eignty can  be  declared  and  exercised  only  in  parliament. 
The  king  gave  up  the  power  to  determine  by  his  individual 
will  the  policy  of  the  state,  but  the  surrender  was  disguised 
by  an  appearance  of  power  and  for  a  long  time  by  the  exer- 
cise of  very  substantial  powers  and  by  the  permanent  pos- 
session of  important  rights  and  influence.  It  was  more  than 
a  hundred  years  before  all  that  the  compromise  implied  was 
clearly  recognized  and  the  balance  established  at  its  present 
level.     But  it  was  really  made  in  1660. 

In  the  history  of  government  in  the  world  no  event  has 
ever  happened  of  greater  significance  or  of  wider  influence 
than  the  making  of  this  compromise.  Upon  it  depended  the 
spread  of  the  English  constitution  throughout  the  civilized 
world  which  is  one  of  the  chief  characteristics  of  the  nine- 
teenth century,  even  if  it  should  in  the  end  prove  that  consti- 
tutional monarchy  is  only  a  halfway  house  on  the  road  to 
ultimate  democracy.  In  this  respect  it  is  difficult  to  over- 
state the  influence  of  this  compromise.  Had  the  course  of 
English  history  led  to  a  constitution  in  which  in  form  and 
law  the  ministry  was  directly  responsible  to  parliament 
instead  of  to  the  king,  not  merely  would  it  have  been  im- 
mensely more  difficult  to  reconcile  the  sovereign  to  a  loss 
of  the  substance  of  power,  but  the  adoption  of  the  constitu- 
tion by  other  and  unwilling  monarchies  would  have  been  made 
a  practical  impossibility.  The  compromise  feature  of  the 
present  constitution  by  which  in  theory  and  in  form  the 
ministry,  though  supreme,  seems  to  be  the  creature  of  the 
king  and  responsible  to  him,  would  have  had  no  existence. 
The  choice  which,  without  this  compromise,  a  successful 
revolution  might  offer  to  a  sovereign  between  a  formal  direct 
responsibility  of  all  the  organs  of  actual  government  to  the 
legislative  assembly  on  one  side,  and  an  out-and-out  republic 
on  the  other,  would  have  been  an  even  choice  with  no  par- 
ticular attractiveness  or  significance  in  one  side  above  the 


THE  RESTORATION  337 

other.  The  world  influence  of  the  English  constitution  de- 
pended for  its  existence  upon  the  fact  that  parliament  came 
to  control  the  actual  government  in  fact  rather  than  in 
form,  indirectly,  not  directly ;  that  an  actual  republic  was 
concealed  under  all  the  ceremonial  and  theoretical  forms  of 
a  continued  monarchy. 

The  Restoration  was  the  work  of  a  combination  of  cava- 
liers and  presbyterians,  somewhat  like  that  which  had  failed 
after  the  first  civil  war.  It  now  succeeded  because  the 
radical  party,  always  in  a  minority,  had  lost  popular  favor 
and  was  without  leadership.  Actively  it  was  the  work 
of  the  army  under  General  Monk  and  of  what  we  in  America 
should  call  a  convention  but  which  is  called  in  England  a 
convention  parliament,  because  formed  like  a  parliament. 
For  the  upper  house  it  was  composed  of  such  lords  as  could 
be  assembled,  and  for  the  commons  it  was  based  on  the  same 
distribution  of  seats  as  the  old  parliament.  Legally  it  was 
not  a  parliament,  because  the  elections  had  been  held  without 
the  authority  of  writs  issued  by  the  king.  After  the  return 
of  Charles  II  an  act  was  passed  declaring  it  to  be  a  parlia- 
ment, and  Charles's  second  parliament,  regularly  summoned, 
passed  an  act  confirming  the  acts  of  the  convention  parlia- 
ment. Everything  possible  was  done  to  make  the  process 
of  restoration  conform  to  constitutional  practice.  Accord- 
ing to  the  interpretation  of  the  constitution  which  was  now 
made  to  prevail,  Charles  II  had  become  king  immediately  on 
his  father's  execution,  and  therefore  all  acts  of  Common- 
wealth and  Protectorate  parliaments,  not  having  received  the 
royal  assent,  must  necessarily  be  void.  This  was  true  also 
of  the  acts  of  the  long  parliament  passed  after  the  outbreak 
of  the  civil  war,  but  the  Restoration  parliaments  did  not 
propose  to  restore  the  older  possibilities  of  autocratic  gov- 
ernment, and  the  earlier  acts  of  the  long  parliament  remained 
in  force  with  a  few  exceptions  and  some  modifications. 

It  has  been  said  that  the  Restoration  was  twofold,  first  of 
the  king  and  the  old  constitution,  and  second  of  the  church, 


338  THE  VICTORY  CONFIRMED 

and  the  description  is  convenient.  In  the  convention  parlia- 
ment the  presbyterians  were  too  strong  to  allow  active  meas- 
ures to  be  taken  against  the  non-conformists.  It  restored 
the  king;  it  gave  to  parliament  its  old  organziation  and  its 
place  in  the  state  with  all  the  new  power  which  it  had  gained; 
it  reestablished  the  gentry  in  local  government  and  in  local 
influence,  and  checked  the  more  radical  puritan  tendency 
towards  democracy ;  it  abolished  the  old  feudal  tenures  of 
land,  and  for  the  income  which  the  crown  had  derived  from 
the  feudal  dues  it  substituted  an  excise  tax ;  it  reenacted  the 
navigation  laws ;  it  voted  tunnage  and  poundage  to  the  king 
for  life,  but  began  the  policy  followed  throughout  the  reign, 
whether  intentionally  or  not,  of  never  furnishing  the  king 
with  revenues  sufficient  to  meet  the  expenses  of  government ;  it 
allowed  the  execution  of  a  few  of  the  judges  who  had  con- 
demned Charles  I  to  death  and  still  fewer  of  their  extreme 
supporters,  but  passed  an  act  of  indemnity  for  the  others. 
This  parliament  was  dissolved  on  December  9.9. 

Writs  were  soon  issued  for  a  new  parliament,  which  met 
on  May  8,  1661.  General  enthusiasm  for  the  monarchy  and 
for  the  Anglican  church  had  been  steadily  rising  since  the 
return  of  the  king,  and  the  elections  reflected  this  feeling. 
The  presbyterian  element  which  had  been  so  important  in 
the  convention  parliament  almost  disappeared,  and  the  house 
of  commons  was  overwhelmingly  cavalier.  The  parliament 
is  known  in  history  as  the  "  cavalier  parliament,"  and  it 
has  been  called  more  royalist  than  the  king  and  more  Angli- 
can than  the  bishops.  Although  it  developed  towards  the 
end  of  its  life  a  more  definite  opposition  to  the  king's  policy 
than  at  first,  it  was  so  satisfactory  on  the  whole  that  it  was 
kept  in  existence  by  Charles  for  eighteen  years,  which  could 
be  legally  done  after  it  had  itself,  in  1664,  repealed  the 
triennial  act  of  1641. 

The  work  of  the  cavalier  parliament  may  be  conveniently 
considered  under  two  topics,  its  ecclesiastical  and  its  political 
activity.     The  question  of  the  national  religion,  or  at  least 


THE  CLARENDON  CODE  339 

of  the  organization  of  the  national  church,  was  still  a  living 
one,  not  yet  finally  decided.  If  the  claims  of  the  independent 
were  not  likely  to  be  very  fully  or  favorably  considered,  the 
presbyterian  had  good  grounds  for  believing  that  some  form 
of  "  comprehension  "  would  be  devised  by  which  he  and  his 
ministers  might  remain  in  the  national  church  without  con- 
forming to  all  the  requirements,  like  ritual  and  vestments, 
to  which  he  objected.  Of  this  mistake  he  was  speedily  dis- 
abused. The  Anglican  majority  in  parliament  and  its  lead- 
ers intended  as  thoroughgoing  a  policy  of  exclusion,  of  en- 
forced conformity,  as  Laud  had  in  mind.  This  intention 
was  embodied  in  a  series  of  four  statutes,  known  commonly 
as  the  Clarendon  code  from  Lord  Chancellor  Clarendon,  the 
chief  minister  of  the  time.1 

The  first  of  these  was  the  corporation  act  of  1661,  by 
which  all  holders  of  offices  in  corporate  towns  were  required 
to  renounce  the  solemn  league  and  covenant,  to  declare  on 
oath  that  resistance  to  the  king  was  unlawful  in  any  circum- 
stances, to  take  the  oaths  of  allegiance  and  supremacy,  and 
in  future  to  receive  the  sacrament  according  to  Anglican  rites 
within  a  year  after  election.  The  act  of  uniformity  of  1662 
required  all  clergymen  to  obtain  episcopal  ordination  and  to 
use  the  prayer  book  in  their  services,  and  all  teachers  to  de- 
clare their  acceptance  of  the  liturgy  and  of  the  principle  of 
non-resistance.  The  conventicle  act  of  1664  forbade,  under 
severe  penalties,  attendance  at  any  worship  not  of  Anglican 
forms  if  more  than  four  persons  were  present,  unless  they 
were  of  the  same  family.  The  five-mile  act  of  1665  demanded 
that  ministers  who  had  refused  to  comply  with  the  act  of 
uniformity  should  declare  on  oath  that  they  regarded  resist- 
ance as  unlawful  and  pledge  themselves  not  to  attempt  any 
changes  in  church  or  state.  If  they  would  not  do  this,  they 
were  forbidden  by  threat  of  heavy  punishment  to  come  within 
five  miles  of  any  corporate  town  or  borough  or  of  any  parish 
in  which  they  had  previously  preached. 
i  A.  and  S.,  425-434. 


340  THE  VICTORY  CONFIRMED 

The  effects  of  this  legislation  were  wide-reaching  and  long- 
continued.  One  immediate  result  was  that  the  church  of 
England  ceased  to  be  a  national  church  in  the  older  sense 
and  became  an  established  church.  "  Comprehension  "  was 
at  an  end.  The  non-conformist  disappeared.  He  became  a 
dissenter,  and  the  term  non-conformist  as  used  in  more 
modern  times  ceased  to  mean,  as  it  had  earlier  in  the  century, 
the  member  of  the  national  church  who  did  not  conform  to 
its  ritual,  and  came  to  mean  the  outsider  who  had  a  different 
church  relationship,  the  dissenter.  The  blow  thus  struck 
was  more  fatal  to  the  presbyterian  than  to  the  independent. 
It  was  indeed  to  some  extent  aimed  at  him  because  of  his 
political  importance.  To  the  presbyterian  a  national  church 
organization  was  a  part  of  his  essential  creed,  and  such  an 
organization  for  him  either  within  or  without  the  Anglican 
church  was  now  impossible.  All  chance  of  a  recovery  of 
political  power  was  also  destroyed,  for  the  seat  of  presby- 
terian political  strength  had  been  in  the  towns,  and  especially 
in  the  corporations  which  elected  borough  members  of  parlia- 
ment. By  degrees  the  presbyterian  families  passed  over  into 
the  church  of  England  and  gave  to  the  future  whig  party 
much  of  its  strength,  while  prcsbyterianism  as  a  non-con- 
formist organization  became  weak  in  England.  The  inde- 
pendent churches,  which  had  never  believed  in  a  national 
organization,  suffered  less  severely  and  survived  in  larger 
numbers  to  the  time  of  toleration.  If  the  brief  interval  of 
limited  toleration  in  the  protectorate  period  interrupted  in 
any  sense  the  complete  parliamentary  control  of  the  religious 
and  ecclesiastical  interests  of  the  nation,  the  legislation  of  the 
restoration  period  fully  restored  it.  The  influence  of  re- 
ligious questions  upon  the  constitutional  legislation  of  the 
period  was  not,  however,  exhausted  by  the  enactment  of  the 
Clarendon  code,  as  will  be  seen  later. 

In  interpreting  politically  the  reign  of  Charles  II,  the 
question  of  the  king's  intentions  is  one  of  considerable  im- 
portance and  one  on  which  scholars  are  not  entirely  agreed. 


THE  KING'S  PURPOSE  341 

It  is  certain  that  in  traits  of  character  and  personality  he 
was  not  a  typical  Stuart.  He  resembled  in  these  respects 
more  closely  his  maternal  grandfather  Henry  IV  of  France. 
With  more  than  average  political  ability,  and  with  a  degree 
of  insight  into  the  conditions  with  which  he  had  to  deal  lack- 
ing in  his  father  and  brother,  he  was  in  some  respects  the 
Stuart  king  most  dangerous  to  the  constitution.  For  the 
simplest  explanation  of  his  policy,  the  one  which  creates  the 
fewest  difficulties,  is  to  suppose  that  he  set  before  himself 
two  chief  objects  to  be  attained:  first,  to  restore  as  com- 
pletely as  possible  the  personal  control  of  the  king  over  the 
government,  to  be  free  of  parliamentary  restraints ;  and 
second,  to  obtain  for  Catholicism,  if  not  the  position  of  the 
state  church  once  more,  at  least  a  position  of  equality  as  a 
recognized  legal  religion  for  all  who  wished  to  adopt  it. 
These  two  objects  he  pursued  with  much  skill  and  discern- 
ment, under  a  mask  of  devotion  to  pleasure,  so  long  as  they 
did  not  demand  of  him  too  severe  an  effort  or  entail  the 
danger  of  another  revolution.  It  must  not  be  understood 
that  pleasure  was  entirely  a  mask  with  Charles.  He  un- 
doubtedly pursued  it  for  its  own  sake  and,  as  he  grew  older, 
its  hold  upon  him  as  a  real  business  in  life  grew  stronger. 
It  is  difficult,  however,  to  explain  some  things  in  his  reign 
unless  we  suppose  that  he  consciously  made  use  of  his  per- 
sonal inclination  to  pleasure  and  the  loose  moral  standards 
of  the  time  to  conceal  from  his  ministers  a  deliberate  inten- 
tion to  return  to  the  constitutional  interpretation  and 
position  of  his  father  and  grandfather,  or  of  the  Tudors. 

Charles  made  his  first  attempt  to  change  existing  condi- 
tions in  favor  of  the  dissenters,  including  catholics,  and  inci- 
dentally of  the  royal  prerogative  as  well,  in  December,  1662. 
He  issued  a  "  declaration,"  called  often  his  first  "  declara- 
tion of  indulgence,"  in  which  he  announced  his  intention  of 
persuading  parliament  in  its  next  session  to  "  enable  us  to 
exercise  with  a  more  universal  satisfaction  that  power  of 
dispensing  which  we  conceive  to  be  inherent  in  us."     That  is, 


342  THE  VICTORY  CONFIRMED 

he  declared  his  belief  that  the  prerogative  of  dispensing 
from  obedience  to  existing  statutes  belonged  to  him  as  king, 
and  that  he  hoped  to  exercise  it  to  relieve  dissenters  with 
the  expressed  acquiescence  of  parliament.  Parliament,  how- 
ever, refused  to  acquiesce,  and  Charles  was  obliged  to  drop 
the  plan.  Ten  years  later  he  did  not  ask  the  cooperation 
of  parliament  but,  relying  on  the  prerogative  alone,  he  issued 
a  new  declaration  in  which  he  said :  2  "  We  do  declare  our 
will  and  pleasure  to  be  that  the  execution  of  all  and  all 
manner  of  penal  laws  in  matters  ecclesiastical,  against  what- 
soever sort  of  non-conformists  or  recusants,  be  immediately 
suspended,  and  they  are  hereby  suspended."  It  has  been 
said  that  forty  acts  of  parliament  were  broken  through  by 
this  declaration,  which  was  of  exactly  the  same  nature  as 
Richard  IPs  attack  on  the  authority  of  parliament.  Any 
hope  which  the  king  may  have  cherished  of  gaining  a  national 
support  for  his  policy  by  a  union  of  protestant  and  catholic 
dissenters  was  disappointed  by  the  unwillingness  of  the  pro- 
testants  to  accept  toleration  on  these  terms,  and  parliament 
expressed  itself  clearly  and  pointedly  at  its  next  session. 
The  house  of  commons  resolved  that  "  penal  statutes  in  mat- 
ters ecclesiastical  cannot  be  suspended  but  by  act  of  parlia- 
ment," and  embodied  the  resolution  in  an  address  to  the  king. 
After  some  hesitation  he  yielded. 

Charles  appears  to  have  been  convinced  by  these  experi- 
ments that  success  was  not  to  be  obtained  03'  direct  preroga- 
tive action,  and  that,  if  he  was  to  secure  equality  of  privilege 
for  catholics,  it  must  be  through  political  success  in  estab- 
lishing his  supremacy  in  the  state.  At  any  rate,  from  this 
time  on  he  dropped  all  open  attempts  to  bring  about  a 
religious  change.  Religion  did  not  disappear,  however,  as 
a  factor  in  the  constitutional  situation.  The  sharp  fear  of 
the  danger  to  liberty  from  a  catholic  triumph,  which  had 
been  so  decided  all  influence  in  the  political  history  of  Eliza- 
beth's time,  returned  in  a  new  form  ;  not  now  the  fear  that  the 
2  A.  and  S.,  434-43G;  Robertson,  Statutes,  45-45. 


THE  TEST  ACT  343 

catholic  portion,  perhaps  in  the  earlier  time  a  majority,  of 
the  nation  might  restore  the  rule  of  the  pope,  but  that  the 
same  dreaded  result  might  be  reached  by  a  catholic  king  or 
a  catholic  dynasty.  Charles's  protestantism  was  suspected. 
His  brother  James,  the  next  in  succession  to  the  throne, 
was  more  than  suspected ;  he  was  confidently  believed  to  be  a 
catholic.  The  national  fear  of  what  might  possibly  result 
led  to  the  passage  of  an  act  of  long-continued  influence  in 
English  history,  and  to  the  attempt,  almost  successful,  to 
pass  another  of  even  greater  constitutional  significance. 

The  first  was  the  "  test  act,"  introduced  almost  immedi- 
ately after  the  withdrawal  of  the  declaration  of  indulgence, 
and  intended  to  exclude  all  catholics  from  office  by  a  test 
which  could  not  be  evaded,  and  which  would  consequently 
compel  all  office-holders  who  were  catholics  in  secret  to  de- 
clare themselves.3  All  civil  and  military  officers  were  re- 
quired to  take  anew  the  oaths  of  allegiance  and  supremacy, 
including  in  the  oaths  a  declaration  of  disbelief  in  any  tran- 
substantiation  in  the  sacrament  of  the  Lord's  supper,  and 
to  receive  the  sacrament  by  the  rites  of  the  English  church. 
This  was  followed  in  1678  by  the  parliamentary  test  act  im- 
posing the  same  declaration  upon  the  members  of  both  houses. 
These  conditions  no  catholic  could  meet,  and  James  was 
obliged  virtually  to  confess  his  membership  in  the  Roman 
church,  and  catholic  peers  were  obliged  to  give  up  their 
seats  in  the  house  of  lords,  which  they  had  until  then  re- 
tained. 

The  pretended  disclosure  by  Titus  Oates  of  a  great  popish 
plot  to  overthrow  the  government  in  the  interest  of  Catholi- 
cism, popularly  supposed  to  be  favored  by  James,  Duke  of 
York,  created  such  intense  excitement  for  a  time  that  the 
party  of  opposition  in  the  cavalier  parliament  was  greatly 
strengthened.  When  Charles  prorogued  and  then  dissolved 
this  parliament  to  save  his  minister,  Danby,  from  impeach- 
ment, the  new  house  of  commons,  elected  in  the  spring  of 
»  A.  and  S.,  436-439;  Robertson,  Statutes,  39-42. 


344  THE  VICTORY  CONFIRMED 

1679,  had  an  even  larger  majority  of  the  opposition  party, 
soon  to  be  called  the  whigs.  The  party  determined  to  save 
the  English  church  from  the  danger  of  a  catholic  sovereign 
by  an  exercise  of  extreme  parliamentary  power.4  In  three 
successive  parliaments  a  bill  was  introduced  to  exclude  the 
duke  of  York  from  succession  to  the  throne.  Once  the  bill 
was  rejected  by  the  house  of  lords,  and  twice  the  king  pre- 
vented its  passage  through  the  house  of  commons  by  proroga- 
tion or  dissolution.  He  did  not,  however,  formally  dispute 
the  constitutional  right  of  parliament  to  change  the  order  of 
succession.  The  religious  question  led  to  no  further  results 
in  the  reign  of  Charles,  but  in  the  actual  revolution  which 
closed  the  reign  of  James  the  religious  influence  was  as  active 
as  the  political. 

It  is  from  the  religious  troubles  of  the  reign  that  the  two 
great  political  parties  of  English  history  date  their  continu- 
ous existence.  If  the  first  principle  of  division  between  them 
seems  to  be  support  of  or  opposition  to  the  court,  and  so 
their  history  may  seem  to  go  back  to  the  division  which 
formed  in  the  house  of  commons  in  1641,  it  must  be  remem- 
bered that  that  earlier  division  was  formed  also  on  religious 
rather  than  political  grounds,  and  that  as  a  beginning  it  must 
be  treated  as  premature,  broken  off  by  a  long  interval  with- 
out appearance  of  parties.  It  must  be  admitted  also  that  a 
strong  argument  can  be  made  to  show  that  what  really  deter- 
mined a  man's  relation  to  support  of  the  court,  or  opposi- 
tion to  it,  was  his  attitude,  even  in  this  early  time,  towards 
the  really  fundamental  issue  which  has  always  separated 
English  parties,  the  question  of  conservatism  or  liberal  prog- 
ress. Through  all  the  changes  of  modern  times,  in  spite  of 
all  the  special  issues  that  arise  from  time  to  time,  this  seems 
to  be  the  final  deciding  test  of  party  position.  This  it  is  in 
English  history  which  determines  that,  except  in  times  of 
political  disintegration,  or  when  new  issues  are  not  yet  clearly 
defined  or  have  not  yet  made  themselves  chief  issues,  there 
*  A.  and  S.,  439-440. 


THE  KING'S  SUCCESS  345 

shall  be  but  two  parties.  However  this  may  be,  the  political 
parties  of  modern  English  history  emerge  from  the  reign 
of  Charles  II  full-grown,  standing  upon  the  fundamental 
principles  which  have  ever  since  determined  their  attitude 
towards  special  questions  as  they  arise,  and  familiar  with  the 
practices  which  they  have  employed  in  their  own  internal 
management  and  in  their  campaigns  against  their  opponents. 
Two  things  enabled  Charles  to  treat  his  last  parliament, 
in  1681,  with  great  contempt,  dissolving  it  after  a  session  of 
a  week  only,  when  it  showed  its  determination  to  go  on  with 
the  exclusion  bill.  One  was  that  he  had  agreed  with  Louis 
XIV  to  withdraw  English  opposition  to  French  plans  on  the 
continent,  in  return  for  a  pension  which  would  render  him 
independent  of  further  parliamentary  grants.  The  other 
was  the  general  reaction  which  had  taken  place  in  England 
against  the  excesses  of  the  popish  plot  and  the  extreme  policy 
of  the  whigs  in  the  exclusion  bill.  The  opposition  party  was 
broken  up  and  driven  out  of  all  influence,  and  was  not  able 
to  recover  itself  until  some  time  after  the  opening  of  the  next 
reign.  The  last  four  years  of  Charles's  life  form  a  period 
of  as  absolute  government  as  that  of  the  Tudors,  but  it  was 
an  imperfect  and  incomplete  absolutism.  It  was  conditioned, 
in  the  first  place,  upon  the  postponement  of  the  king's  inten- 
tions in  regard  to  catholic  dissenters.  He  had  learned  that 
these  could  not  be  safely  allowed  to  appear,  at  least  not  until 
his  political  power  was  secure.  In  the  second  place,  it  was 
an  absolutism  without  institutional  means  of  expression,  em- 
bodied in  no  forms,  and  wholly  unrecognized.  It  existed  as 
yet  because  of  the  absence  of  resistance  and  of  all  opposing 
leadership,  and  because  of  the  spirit  put  into  forms  which 
could  be  as  easily  interpreted  in  the  opposite  direction,  that 
is,  because  of  the  racial  habit  of  allowing  laws  to  be  inter- 
preted by  conventional  practice  and  conventional  practice 
to  pass  into  law.  Charles  and  his  brother  would  have  had  a 
task  of  enormous  difficulty  in  transforming  this  nascent  ab- 
solutism into  one  as  well  based  in  law  and  constitution  as 


346  THE  VICTORY  CONFIRMED 

Louis  XIV's,  but  it  would  be  rash  to  say  that  from  the 
beginning  Charles  had  made  they  could  not  have  done  it,  if 
they  had  been  willing  to  let  religion  alone  and  had  been  able 
to  act  with  sufficient  reserve. 

It  would  be  wrong  to  say  that  they  were  entirely  without 
the  advantage  of  a  constitutional  beginning.  One  important 
element  of  Anglo-Saxon  liberty  had  not  been  yet  secured  — 
the  independence  of  the  judiciary.  The  puritans  in  their 
legislation  had  given  to  the  judges  a  tenure  during  good 
behavior,  quamdiu  se  bene  gesserint,  but  the  legislation  had 
fallen  to  the  ground,  and  Charles  had  gone  back  to  the  older 
practice  of  appointments  during  pleasure,  durante  bene 
placito.  He  dismissed  for  political  reasons  two  lord  chan- 
cellors and  a  lord  keeper,  three  chief  justices  and  six  judges, 
and  James  II  went  even  farther.  Some  preparation  was  also 
made  against  the  inevitable  time  when  there  must  be  another 
parliament.  The  towns  were  the  strongholds  of  the  opposi- 
tion party  and  against  them  the  blow  was  struck.  Quo 
•warranto  proceedings  were  brought  against  them  in  the 
courts,  alleging  acts  beyond  their  legal  powers,  and  their 
charters  in  large  numbers  were  declared  forfeited.5  New 
charters  were  granted  to  them,  but  with  the  right  of  election 
and  municipal  government  confined  to  a  few  persons  so 
that  a  controlling  influence  of  the  crown  would  be  easy. 
Besides  this  the  art  of  parliamentary  corruption  had  been  in- 
vented and  put  into  operation  somewhat  extensively  during 
the  reign ;  precedent  had  been  created  for  interfering  with 
the  right  of  petition;  and  the  doctrine  of  non-resistance  had 
been  exalted  into  almost  a  necessary  article  of  belief.  Suc- 
cess was  probably  hopeless  at  so  late  a  date  as  the  end  of 
the  seventeenth  centur}',  but  the  sudden  death  of  Charles  at 
an  age  when  many  years  of  vigorous  life  might  still  be  ex- 
pected in  normal  cases  was  a  disaster  to  the  cause  of  ab- 
solutism, not  uncommon  in  the  history  of  monarchical  suc- 
cessions, for,  in  place  of  the  political  insight  and  willingness 
5  A.  and  S.,  448-450;  Robertson,  Statutes,  382-384. 


THE  HABEAS  CORPUS  ACT  347 

to  bide  his  time  of  Charles,  it  put  the  tactless  impatience 
of  his  brother  James. 

One  further  statute  of  the  reign  of  Charles  I  is  of  special 
constitutional  importance,  the  habeas  corpus  act  of  1679.° 
The  middle  ages  had  known  a  number  of  writs  which  had  for 
their  object  to  protect  the  liberty  of  the  subject  against 
arbitrary  arrest  and  imprisonment.  At  first,  in  the  thir- 
teenth century,  the  writ  of  habeas  corpus  could  hardly  be 
called  one  of  these,  but  it  was  used  to  bring  a  person  into 
court  for  several  different  purposes  —  to  give  evidence,  for 
instance.  It  is  only  in  the  fifteenth  century  that  it  begins 
to  be  used  by  the  common  law  courts  to  protect  persons 
from  the  growing  prerogative  jurisdiction  of  the  equity 
courts,  and  in  the  sixteenth  that  it  becomes  important  as  a 
protection  against  the  increasing  powers  of  the  council. 
The  full  possibilities  of  the  writ  in  the  way  of  protection 
were  indeed  not  realized  until  after  the  beginning  of  the 
seventeenth  century,  and  we  have  already  seen  the  first  steps 
taken  to  develop  it  in  the  early  part  of  the  reign  of  Charles  I. 
When  the  original  jurisdiction  of  the  council  was  ended  in 
1641,  the  need  of  protection  was  not  ended  also,  for  it  still 
retained  the  power  of  arrest  and  imprisonment  though  not  of 
trial.  Experience  had  shown  also  that  several  details  in  the 
procedure  needed  clearer  definition.  The  act  of  1679  must 
not  be  thought  of  as  having  for  its  object  to  establish  the 
principle,  but,  like  the  legislation  on  taxation  after  1295,  to 
cut  off  various  means  of  avoiding  the  principle  which  had 
been  found  dangerous.  Not  merely  were  officers  holding  per- 
sons in  custody  required  under  heavy  penalties  to  make 
proper  and  speedy  return,  but  also  judges  to  whom  applica- 
tion for  the  writ  was  made  were  required  under  still  heavier 
penalties  to  issue  it.  The  number  of  courts  which  could 
issue  the  writ  was  increased,  and  it  was  provided  that  pris- 
oners not  bailable  should  be  brought  to  a  speedy  trial.  The 
danger  of  a  demand  of  excessive  bail  was  not  thought  of  and 
6  A.  and  S.,  440-448. 


348  THE  VICTORY  CONFIRMED 

remained  to  be  guarded  against  in  the  Bill  of  Rights  ten  years 
later. 

It  should  not  be  overlooked  that  the  process  of  impeach- 
ment, the  medieval  method  of  holding  the  individual  minister 
directly  responsible  to  parliament,  was  given  its  perfected 
and  final  form  in  this  reign.  It  would  perhaps  be  better  to 
say  that  it  was  perfected  just  at  the  time  when  it  was  about 
to  be  made  obsolete  by  the  modern  method  of  enforcing  re- 
sponsibility —  the  cabinet  system.  In  the  impeachment  of 
the  earl  of  Danby,  begun  in  1679  but  never  completed,  vari- 
ous points,  partly  old  and  partly  new,  were  decided :  7  that 
the  minister  could  be  put  on  trial  on  charges  known  to  be 
unfounded  against  him  but  well  founded  against  the  king; 
that  the  king's  written  order  could  not  be  plead  in  defence ; 
that  a  pardon  from  the  king  could  not  avail  to  stop  the  trial 
— embodied  in  law  in  the  act  of  settlement  of  1701 ;  and 
that  prorogation  or  even  a  dissolution  of  parliament  was  not 
to  interrupt  the  proceedings  and  require  them  to  be  begun 
anew.  This  last  was  an  application  of  the  principle  already 
adopted  in  the  ordinary  judicial  business  of  the  house  of 
lords.  Though  the  growth  of  the  cabinet  system  made  im- 
peachment obsolete  as  a  political  expedient,  it  is  still  usable 
as  a  criminal  trial  in  England  and  may  be  so  used  in  the 
United  States  though  with  penalties  only  of  a  political  kind. 

A  far  more  effective  means  of  maintaining  a  parliamentary 
control  over  the  executive,  at  least  under  modern  conditions, 
was  developed  and  improved  in  the  reign  of  Charles  —  im- 
proved to  such  an  extent  as  almost  to  constitute  its  begin- 
ning —  the  practice  of  appropriations.  We  have  seen  the 
beginning  of  the  practice  in  the  fifteenth  century,  but  the 
beginning  remained  a  beginning  of  possibility  only.  It  was 
followed  by  no  substantial  growth.  Instances  had  occurred 
earlier  in  the  seventeenth  century  of  assigning  supplies  when 
voted  to  particular  objects  of  expenditure  without  creating  a 
continuous  practice.  Now  in  1665  a  grant  was  voted  to  be 
^  Robertson,  Statutes,  566-569;  A.  and  S.,  439. 


APPROPRIATIONS  349 

used  for  the  war  with  the  Dutch,  and  this  was  followed  up 
in  1667  by  the  appointment  of  a  parliamentary  committee 
to  audit  the  accounts  of  the  treasury,  and  by  the  expulsion 
from  the  house  of  the  treasurer  of  the  navy,  because  he  had 
paid  out  money  without  a  warrant.  It  was  the  strict  audit- 
ing of  the  accounts  and  insisting  that  a  legal  warrant  only 
could  authorize  the  payment  of  money  that  constituted  the 
advance  of  the  time,  and  though  there  was  some  interruption 
of  the  practice  under  James,  there  was  no  real  break.  The 
foundation  was  securely  laid  for  the  changes  that  followed 
after  his  expulsion.  Modern  Anglo-Saxon  legislatures  have 
considered  the  practice  of  appropriation,  now  extended  to 
even  minute  items  of  expense,  to  be  one  of  the  most  essential 
sources  of  their  power  and  have  guarded  it  with  the  utmost 
care.  It  is  a  check  upon  government  policy,  not  by  calling 
a  minister  to  account  for  what  he  has  done,  but  by  rendering 
action  which  is  not  approved  of  impossible  in  advance.  The 
full  establishment  of  the  right  of  appropriation  should  prob- 
ably be  regarded  as  the  last  step  in  the  creation  of  so  great 
a  power  in  parliament  over  the  executive  that  resistance  was 
hardly  possible,  and  that  the  cabinet  method  of  responsi- 
bility, expressed  in  no  law,  existing  in  unrecognized  custom 
only,  could  come  into  existence. 

If  the  increase  in  the  power  of  the  house  of  commons 
through  its  control  of  government  expenditure  was  a  prep- 
aration for  the  setting  up  of  cabinet  responsibility,  and  if 
in  the  formation  of  parties  preparation  was  made  for  the 
motive  force  to  operate  it,  equal  preparation  was  also  made 
in  this  period  of  the  external  or  institutional  body  with 
which  it  was  to  be  clothed.  The  starting-point  of  this  side 
of  cabinet  formation  was  found  in  the  old  privy  council, 
and  the  immediate  line  of  connection  with  parliament  was 
found  in  the  fact  that  members  of  the  council  had  always 
been  members  of  one  house  or  the  other.  The  council  since 
the  close  of  the  middle  ages  had  shown  a  decided  tendency 
to  increase  in  numbers  and  at  least  the  beginning  of  a  tend- 


350  THE  VICTORY  CONFIRMED 

cncy  to  differentiate  within  itself  distinct  ministries,  that 
is,  individual  members  or  small  committees,  in  special  charge 
of  particular  governmental  or  administrative  interests. 
Committees  of  this  kind  go  back  into  the  middle  ages,  and 
in  Tudor  times  there  were  at  least  six  of  them.  With  the 
increasing  membership  of  the  council  it  became  more  difficult 
to  do  business  effectirely  in  a  meeting  of  the  whole,  and  the 
use  of  committees  continued  throughout  the  seventeenth  cen- 
tury. In  addition,  it  should  be  noticed  that  the  king  was 
not  bound  to  consult  the  council,  nor  any  particular  mem- 
bers of  it,  on  any  question  of  policy,  and  it  was  also  regarded 
as  proper  for  him  to  consult,  and  he  often  did,  members  not 
forming  a  recognized  committee  or  persons  not  belonging  to 
the  council  at  all. 

At  the  accession  of  Charles  II  the  size  of  the  council  was 
further  increased.  The  surviving  members  of  his  father's 
council  were  restored  to  their  places  with  other  royalists, 
and  the  number  of  these  was  balanced  by  appointments  from 
the  opposing  party.  At  times  under  Charles  the  council 
contained  as  many  as  fifty  men.  But  there  was  no  attempt 
to  make  the  council  as  a  whole  a  real  advisory  organ,  and 
the  small  committee  for  foreign  affairs  performed  that  func- 
tion more  nearly  than  anything  else.  Still  Charles  con- 
sulted, and  increasingly  as  time  went  on,  with  informal  or 
secret  advisers,  though  there  was  an  increasing  feeling  that 
there  should  be  a  recognized  council  standing  between  king 
and  parliament,  mediating  between  the  two,  and  having  an 
influence  sufficient  to  secure  that  the  policy  actually  followed 
should  have  the  support  of  both.  This  was  the  idea  at  the 
bottom  of  the  plan  attributed  to  Sir  William  Temple,  which 
was  tried  after  the  fall  of  Clarendon.  Mediation  was  to  be 
obtained  by  including  all  parties.  The  council  was  to  con- 
tain friends  and  opponents  of  the  king  and  neutrals,  mem- 
bers of  the  old  council  and  parliamentary  leaders.  The  plan 
could  hardly  have  been  successful,  even  if  the  king  had  given 
it  sincere  support. 


NOTABLE  CHANGES  351 

The  modern  cabinet  was  not  to  originate  in  a  coalition 
measure.  But  the  attempt  shows  that  the  problem  which  the 
cabinet  was  to  solve,  the  necessity  of  making  sure  that  execu- 
tive and  legislature  should  follow  a  common  policy,  was  be- 
ginning to  be  understood,  and  that  the  privy  council  was 
felt  to  be  the  institution  in  which  the  machinery  of  recon- 
ciliation should  be  found.  To  this  we  shall  return  in  more 
detail  in  the  next  chapter. 

Some  things  worthy  of  note  begin  and  some  end  in  this 
reign.  Convocation  ceases  to  tax  itself  and  the  right  is  sur- 
rendered to  parliament.  The  house  of  lords  as  a  court  of 
law  abandons  its  original  jurisdiction  and  establishes  its 
right  to  hear  appeals  from  the  chancery  courts.  Members 
of  juries  cease  -to  be  personally  liable  for  the  verdicts  they 
render  if  not  satisfactory  to  the  presiding  judge.  The 
house  of  commons  establishes  its  exclusive  right  to  determine 
taxation  free  from  amendments  by  the  lords.  The  medieval 
tenths  and  fifteenths  disappear  from  taxation.  The  organ- 
ization of  the  war  office  under  a  secretary  at  war  begins,  and 
an  improved  council  for  foreign  plantations  for  colonial  con- 
cerns. 

James  II  could  hardly  have  begun  his  reign  under  more 
favorable  conditions  than  actually  existed.  The  practical 
power  handed  on  to  him  by  his  brother  was  very  great ;  it 
has  even  been  said  to  have  been  greater  than  that  possessed 
by  the  Tudors.  The  sympathy  and  prevailing  disposition 
of  the  nation  was  all  in  his  favor,  for  the  reaction  against 
the  attempt  to  exclude  him  from  the  throne  had  been  general 
and  deep.  The  doctrines  of  divine  right  and  non-resistance 
seemed  almost  universally  accepted.  The  opposition  was 
thoroughly  disorganized  and  discouraged  and  not  in  a  posi- 
tion to  exert  any  effective  strength.  James's  first  acts  and 
words  and  his  apparent  restraint  made  a  good  impression 
upon  all.  The  parliament  elected  under  these  influences  in 
the  spring  after  his  accession,  and  with  the  advantage  given 
to  the  crown  by  the  manipulation  of  the  borough  charters, 


352  THE  VICTORY  CONFIRMED 

was  overwhelmingly  royalist.  He  was  granted  a  large  reve- 
nue for  life,  and  parliament  seemed  ready  to  do  anything  in 
reason  which  he  wished.  From  such  a  beginning  it  was  no 
slight  political  achievement  to  have  destroyed  all  his  advan- 
tages in  a  trifle  over  three  years  and  have  brought  himself 
to  the  point  where  he  must  abandon  his  throne  as  a  fugitive 
with  scarcely  a  supporter  left.  And  it  was  a  significant 
element  in  this  achievement  that  he  had  in  so  short  a  time 
transformed  most  members  of  the  party  which  from  honest 
conviction  had  held  to  the  doctrine  of  non-resistance  into 
advocates  of  resistance  and  revolution. 

It  was  as  true  of  James  as  it  was  of  the  nation  that  the 
leading  interests  and  motives  in  the  crisis  were  religious.  He 
wished  to  give  Catholicism  a  better  position  in  England ;  it 
was  undoubtedly  his  hope  to  make  it  a  legal  worship.  But 
the  means  which  he  employed  and  the  results,  probably 
secondary  to  his  main  purpose,  which  he  accomplished  were 
constitutional.  The  ease  with  which  the  insurrections  of 
Argyle  and  Monmouth  were  put  down  soon  after  he  began 
to  reign,  and  the  possession  of  a  fine  army  which  he  did 
not  disband  when  the  insurrections  had  been  suppressed, 
probably  tempted  him  to  go  faster  and  farther  than  he  at 
first  intended.  He  determined  not  merely  to  retain  the  army, 
in  spite  of  the  national  prejudice  against  a  standing  army, 
but  also  to  keep  in  their  offices  the  catholics  who  had  been 
commissioned  during  the  insurrection  contrary  to  the  test 
act,  an  even  more  serious  offence.  Before  these  questions 
were  brought  to  the  attention  of  parliament  in  November, 
1685,  sympathy  and  alarm  had  been  excited  in  the  country 
by  the  persecution  of  protestants  in  France  by  Louis  XIV, 
and  especially  by  the  revocation  of  the  edict  of  Nantes  in 
October,  as  it  was  supposed  under  special  Jesuit  influence. 
As  there  was  known  to  be  strong  Jesuit  influence  also  at  the 
court  of  James,  naturally  suspicion  was  aroused  and  faith 
in  any  representations  or  promises  of  the  king's  weakened. 


THE  DISPENSING  POWER  353 

When  parliament  declined  to  provide  for  the  army  or  to 
relieve  the  officers  from  the  test  act,  but  adopted  an  address 
to  the  king  of  the  opposite  significance,  it  was  prorogued  and 
after  a  long  interval  was  dissolved. 

James  was  not  to  be  turned  from  his  course  by  the  opposi- 
tion of  parliament.  The  next  spring,  after  providing  a 
packed  bench  of  judges,  he  secured  a  judgment  in  a  collusive 
suit  affirming  that  he  had  the  power  to  grant  dispensations 
from  the  statute  to  any  of  his  subjects.8  With  this  author- 
ization he  went  on  to  appoint  catholics  to  office,  not  merely 
in  the  army  but  to  civil  office,  to  the  privy  council,  in  the 
university  of  Oxford,  and  even  in  the  English  church  itself. 
At  about  the  same  time,  because  he  had  found  himself  unable 
to  punish  a  clergyman  who  had  preached  an  anti-catholic 
sermon,  he  created  what  was  in  reality  a  revived  ecclesiastical 
court  of  high  commission,  though  taking  some  pains  to  avoid 
the  letter  of  the  statute  abolishing  the  former  court  of  that 
name.  Catholics  were  encouraged  to  celebrate  their  worship 
more  and  more  openly,  and  when  the  London  mob  forcibly 
objected  James  brought  up  his  army  and  settled  16,000 
men  in  a  camp  near  the  city.  There  was  evidence  enough 
of  the  temper  of  the  nation  regarding  these  innovations,  but 
the  king  did  not  see  and  did  not  understand. 

By  the  end  of  1686  James  had  gone  far,  but  his  work 
still  lacked  a  solid  foundation.  It  rested  merely  on  action 
of  the  royal  prerogative  of  more  than  doubtful  validity,  at 
least  if  the  nation  should  ever  again  be  in  a  position  to  ex- 
press and  give  effect  to  its  own  determination.  The  next 
move  was  an  attempt  to  gain  popular  support.  Charles 
had  found  that  he  could  not  gain  the  help  of  the  protestant 
dissenters  by  relieving  them  of  their  religious  disabilities  by 
declarations  of  indulgence.  James  thought  he  could.  In 
April,  1687,  he  issued  his  own  first  declaration  of  indulgence, 
which  granted  freedom  of  worship  to  all  dissenters,  prot- 
»  Robertson,  Statutes,  384r-388. 


354  THE  VICTORY  CONFIRMED 

estant  or  catholic,  and  did  away  with  all  religious  tests  ior 
office.9  For  a  moment  it  seemed  as  if  the  protestant  dis- 
senters would  respond.  It  was  even  hoped  that  a  parliament 
might  be  elected  which  would  repeal  the  test  act,  and  manipu- 
lation of  the  constituencies  was  extended  from  the  boroughs 
to  the  counties,  but  the  attempt  did  not  succeed.  The  coun- 
ties could  not  be  controlled  and  the  devotion  of  the  king  to 
Catholicism  became  too  suspicious  for  the  support  of  inde- 
pendents and  quakers. 

At  the  same  time  with  the  declaration  of  indulgence  came 
the  attempt  of  the  king  to  impose  a  catholic  president  upon 
Magdalen  College,  Oxford,  against  the  election  of  the  fellows, 
and  his  installation  by  force,  which  increased  greatly  the  pub- 
lic excitement  and  fear.  James  remained,  however,  blind  to 
all  signs  and  events  moved  rapidly  to  their  natural  con- 
clusion. In  April,  1688,  the  second  declaration  of  indul- 
gence was  issued,  followed  immediately  by  an  order  that  it 
should  be  read  in  all  the  national  churches.10  This  seemed 
to  the  clergy  not  merely  an  illegal  act  of  the  king's  but  to 
require  of  them  also  illegal  action.  The  archbishop  of  Can- 
terbury and  six  bishops  sent  a  petition  to  the  king  request- 
ing that  the  clergy  should  not  be  forced  to  act  against  the 
law.  The  implication  that  his  action  was  illegal  aroused  -the 
intense  anger  of  James,  and  the  bishops  were  arrested  on  a 
charge  of  criminal  libel  and  lodged  in  the  Tower.  Their 
trial  was  a  travesty  of  justice,  but  their  acquittal  by  the 
jury  was  not  merely  received  with  enthusiastic  rejoicing, 
even  in  the  army,  but  marks  a  stage  in  the  development  of 
the  right  of  the  jury  to  render  a  verdict  on  the  general  merits 
of  the  case  whatever  may  be  the  evidence  submitted  to  them. 

Before  the  trial  took  place  the  birth  of  a  son  to  James 
changed  the  whole  situation  at  a  stroke.  Until  this  event 
it  had  been  possible  for  the  nation  to  look  forward  to  a  not 
distant  time  when  James's  daughter  Mary,  married  to  the 

»  A.  and  S.,  451-454. 

io  Robertson,  Statutes,  388-391. 


THE  REVOLUTION  OF  1688  355 

Prince  of  Orange,  both  strong  protestants,  should  come  to 
the  throne.  It  was  possible  to  wait  patiently  in  the  hope 
that  matters  could  not  be  carried  too  far  before  conditions 
would  change.  Now  the  possibility  was  opened  of  an  in- 
definite line  of  catholic  sovereigns,  and  it  became  obvious  to 
all  that  the  nation  must  aid  itself.  Immediately  after  the 
acquittal  of  the  bishops  a  written  invitation  was  sent  to 
William  of  Orange  to  come  to  England  to  take  the  lead 
against  the  king,  signed  by  seven  prominent  whigs  and  tories. 
Even  after  William  landed  it  might  have  been  possible  to 
avert  revolution  and  the  loss  of  the  throne,  if  James  had  had 
a  clearer  insight  into  the  actual  situation  and  been  less  ob- 
stinate in  holding  to  his  own  course.  As  it  was,  he  was 
abandoned  by  practically  everybody  and  himself  abandoned 
his  own  cause  by  his  flight  to  France. 

James  did  his  best  to  make  the  organization  of  a  new  gov- 
ernment impossible  by  burning  the  writs  which  he  had  pre- 
pared to  issue  for  another  parliament  and  by  carrying  off 
the  great  seal.  But  there  was  no  serious  embarrassment. 
An  advisor}^  "  assembly  "  was  called  composed  of  the  lords 
and  of  all  who  had  been  members  of  the  house  of  commons 
during  the  reign  of  Charles  II,  with  representatives  of  the 
government  of  London.  The  assembly  advised  the  calling 
of  a  convention  parliament,  and  letters  were  issued  for  the 
ordinary  parliamentary  elections,  though  the  letters  could 
not  be  in  the  usual  form  of  parliamentary  writs.11  The  con- 
vention parliament  met  January  22,  1689,  and  remained  in 
active  work  until  August  20,  and  later  continued  its  work  in 
a  second  session.  Immediately  after  the  acceptance  of  the 
crown  by  William  and  Mary,  it  declared  itself  to  be  a  parlia- 
ment and  its  acts  valid  law,  and  this  was  reaffirmed  by  the 
second  parliament  of  the  reign.  It  must  be  remembered  that 
the  process  of  revolution  had  been  made  to  seem  to  this  gen- 
eration less  startling  and  violent,  and  more  nearly  a  per- 
missible process  in  extreme  need,  than  would  normally  be  the 

ii  Robertson,  Statutes,  105-108;  A.  and  S.,  454-456. 


356  THE  VICTORY  CONFIRMED 

case,  partly  by  the  experiences  of  the  century,  for  many  men 
then  living  could  remember  an  earlier  successful  convention 
parliament,  and  partly  by  the  extensive  study  of  past  pre- 
cedents which  had  become  habitual.  Reference  was  made 
in  relation  to  James  to  the  deposition  of  both  Edward  II 
and  Richard  II. 

There  were  grave  differences  of  opinion  as  to  what  should 
be  done  with  the  throne  at  the  opening  of  the  convention  par- 
liament. Some  wished  to  restore  James  with  secure  condi- 
tions ;  some  wished  a  regent  with  James  as  titular  king ; 
others  held  that  James  had  abdicated  by  his  flight  but  that 
the  crown  at  once  fell  to  Mary,  with  no  vacancy ;  and  others 
still,  that  James  had  abdicated  but  that  the  throne  was  va- 
cant and  the  nation  had  the  right  to  fill  it,  fixing  such  con- 
ditions as  would  secure  good  government.  It  was  this  last 
view  which  finally  prevailed,  partly  because  of  the  refusal  of 
William  to  accept  any  other.  James  was  not  formally  de- 
posed, but  it  was  resolved  "  that  King  James  II,  hav- 
ing endeavoured  to  subvert  the  Constitution  of  the 
Kingdom  by  breaking  the  original  contract  between 
king  and  people,  having,  by  the  advice  of  Jesuits  and 
other  wicked  persons,  violated  the  fundamental  laws,  and 
withdrawn  himself  out  of  the  Kingdom,  has  ab- 
dicated the  government,  and  that  the  throne  is  thereby  va- 
cant," and  second,  "  that  it  hath  been  found  by  experience 
inconsistent  with  the  safety  and  welfare  of  this  Protestant 
Kingdom  to  be  governed  by  a  Popish  prince."  The  crown 
was  offered  to  William  and  Mary  conjointly,  with  succession 
after  the  descendants  of  Mary  to  the  princess  Anne  and  her 
descendants,  and  in  the  third  place  to  descendants  of  Wil- 
liam by  any  other  marriage,  and  was  accepted  by  them. 

Conditions  of  succession  were,  however,  not  the  only  con- 
ditions which  the  new  sovereigns  were  required  to  accept. 
There  was  added  by  parliament  and  accepted  by  them  a 
"  declaration  of  right,"  enumerating  the  arbitrary  acts  of 
James  and  declaring  each  of  them  specifically  to  be  illegal. 


THE  BILL>  OF  RIGHTS  357 

In  the  second  session  of  the  convention  parliament  this 
declaration,  with  some  additions,  was  embodied  in  a  statute 
and  adopted  as  law,  and  in  this  form  it  is  known  in  history  as 
the  Bill  of  Rights. 

The  Bill  of  Rights,  whether  regarded  historically  as  the 
end  of  a  constitutional  epoch,  or  for  what  it  is  in  itself  merely, 
is  the  most  interesting  document  of  English  history  next  to 
the  Great  Charter.12  It  marlcs  the  end  and  sums  up  the  re- 
sults of  a  struggle  which  had  filled  almost  a  hundred  years, 
in  which  the  very  nature  of  government,  the  sources  of  its 
authority,  and  the  method  and  channel  of  its  expression,  were 
at  stake.  These  questions  as  involving  the  fundamental 
character  of  the  government  were  now  settled  never  to  be 
raised  again  in  English  history.  Yet  of  all  of  these  questions 
as  fundamental  issues  the  Bill  of  Rights  says  nothing. 
There  is  in  it  no  statement  of  what  the  issues  had  been,  much 
less  any  attempt  at  theoretical  justification,  or  political  phil- 
osophy or  generalization.  This  omission  was  not  because 
there  was  no  current  political  philosophy  in  defence  of  the 
revolution.  There  was  a  great  deal  of  it  in  print,  and  John 
Locke's  Tw.o  Treatises  of  Government,  which  was  published  a 
few  months  after  the  Bill  of  Rights  was  adopted,  was  in  man- 
uscript and  had  been  for  nearly  twenty  years.  Other  coun- 
tries outside  of  England  which  have  adopted  similar  docu- 
ments have  not  followed  this  example  strictly.  The  numer- 
ous "  Declarations  of  the  Rights  of  Man  "  adopted  on  the 
continent  in  the  revolutionary  period  a  century  later  are  full 
of  speculative  philosophy  about  natural  and  inalienable 
rights  which  was  derived  directly  from  the  ideas  of  Locke. 
In  the  documents  of  our  own  national  and  state  history  we 
have  stood  between  the  two,  but  nearer  rather  to  the  English 
than  to  the  French  position.  We  have  put  forth  many  state- 
ments of  natural  rights,  like  that  in  the  preamble  to  the  Dec- 
laration of  Independence,  which  was  derived  directly  from 
Locke  and  not  from  France.  We  have  called  these  generally 
12  A.  and  S.,  462-469;  Robertson,  Statutes,  129-137. 


358  THE  VICTORY  CONFIRMED 

bills  of  rights,  but  wo  have  combined  them  with  sharply  prac- 
tical statements  of  specific  rights  and  remedies  of  the  English 
type,  like  the  body  of  the  Declaration  of  Independence  and 
the  first  amendments  to  the  Constitution,  some  of  which  use 
the  language  of  the  Bill  of  Rights.  Upon  these  latter  we 
have  really  depended  to  secure  liberty,  and  not  upon  declara- 
tions of  natural  right.  It  is  not  too  much  to  say  that  Anglo- 
Saxon  liberty  has  been  created  and  made  secure  because  the 
Anglo-Saxon  mind  has  instinctively  felt  that  the  affirmation 
of  abstract  rights,  however  emphatic  and  solemn,  protects 
nothing,  but  that  the  end  was  to  be  reached  as  a  practical 
reality  by  "  providing  remedies  for  the  enforcement  of  par- 
ticular rights  or  for  averting  definite  wrongs." 

This  is  what  the  Bill  of  Rights  does.  It  does  not  state  the 
fundamental  issues  of  the  seventeenth  century,  but,  by  enum- 
erating and  declaring  illegal  the  specific  acts  by  which  James 
has  tried  to  set  up  an  autocratic  royal  power,  it  condemned 
and  made  impossible  for  the  future  everything  that  any  one 
of  the  Stuarts  had  attempted.  In  doing  so  it  did  what  had 
been  omitted  in  1660;  it  gathered  the  results  of  the  revolu- 
tion into  constitutional  form,  embodied  in  a  formal  document, 
and  made  them  binding  upon  future  kings.  Considering  that 
most  of  the  law  stated  in  Magna  Carta  has  become  obsolete, 
not  applicable  to  modern  conditions,  while  the  provisions  of 
the  Bill  of  Rights  would  be  of  instant  application  to  an 
attempt  of  the  executive  to  recover  power,  the  Bill  of  Rights 
is  most  nearly  of  the  nature  of  a  written  constitution  of  any- 
thing in  E-nglish  history.  It  is  not  a  written  constitution. 
It  does  not  constitute  a  government  and  define  its  powers. 
It  could  be"  repealed  or  abrogated  by  an  ordinary  act  of  par- 
liament. And  yet  it  does  put  into  written  form  a  series  of 
constitutional  laws  which  are  fundamental  to  the  Anglo- 
Saxon  system  of  government.  They  are  probably  regarded 
in  the  popular  mind  as  so  fundamental  that,  if  parliament 
should  ever  be  tempted  to  exercise  its  power  to  repeal  them, 


THE  SUPREMACY  OF  LAW  359 

there  would  be  many  who  would  be  inclined  to  say  that  it  had 
no  Tight  to  do  so. 

It  should  be  remembered  also  that  the  Bill  of  Rights,  con- 
sidered as  a  constitutional  enactment,  affirmed  in  more 
specific  language  than  any  earlier  document  the  underlying 
fact  of  English  constitutional  development,  that  the  king 
has  no  right  to  violate  the  fundamental  laws  of  the  kingdom. 
To  be  sure  the  bill  does  not  say  this  in  set  terms,  but  by  un- 
avoidable inference.  In  the  preamble,  after  enumerating 
the  arbitrary  acts  of  James,  it  continues :  "  All  which  are 
utterly  and  directly  contrary  to  the  knowne  lawes  and 
statutes,  and  the  freedome  of  this  realme."  And  in  the  body 
of  the  bill  the  same  acts  are  declared  to  be  "  illegal."  The 
bill  is  also  as  clearly  a  contract  between  the  king  and  the  na- 
tion as  the  charters  of  Henry  I  and  John  were  between  the 
king  and  the  barons,  though  there  was  in  the  seventeenth 
century  no  reminiscence  of  a  feudal  contract.  It  is  made 
evident  in  the  bill,  though  again  not  expressly  affirmed,  that 
it  is  in  consequence  of  their  recogntion  of  the  illegality  of 
James's  acts  that  William  and  Mary  are  accepted  as  reigning 
sovereigns.  In  these  respects  the  revolution  of  1688  and  the"' 
Bill  of  Rights  mark  the  culmination  of  English  constitutional 
development.  The  foundations  upon  which  the  constitution 
rests,  the  supremacy  of  the  law,  the  sovereignty  of  the  nation, 
are  never  again  called  in  question.  All  the  later  progress 
consists  in  more  and  more  complete  application  of  these 
principles  in  actual  government,  the  more  complete  carrying 
of  them  out  in  practice. 

If  the  Bill  of  Rights  was  severely  practical,  so  was  the 
revolution  of  which  it  was  the  result.  It  was  emphatically 
a  revolution  by  public  opinion,  without  bloodshed,  even  with- 
out conflict  or  public  convulsion.  Not  merely  was  it  car- 
ried through  quietly,  but  great  pains  were  taken  that  every 
step  in  it  should  be  legal,  or  as  nearly  so  as  possible.  And 
yet  it  was  a  revolution.     It  was  not,  and  it  could  not  be 


360  THE  VICTORY  CONFIRMED 

made,  legal  to  declare  that  a  king  had  abdicated  who  had 
not  done  so  and  who  vigorously  maintained  that  he  had  not. 
That  was  deposition,  in  reality,  if  not  in  form,  and  the  con- 
stitutional law  of  a  monarchy  could  hardly  provide  for  the 
deposition  of  the  sovereign.  Other  things  had  to  be  done 
which  were  not  legal.  According  to  precedent  the  conven- 
tion parliament  was  not  legally  a  parliament,  and  it  could 
not  make  itself  so  by  its  own  act,  nor  indeed  could  the  next 
parliament  do  so,  itself  called  by  a  revolutionary  king.  But 
it  was  a  revolution  fully  justified,  as  a  revolution  must  be 
if  at  all,  by  the  higher  right  of  the  common  decision  of  the 
nation  which  spoke  through  it.  Also  in  no  other  revolution 
is  another  characteristic  common  to  Anglo-Saxon  revolu- 
tions seen  so  clearly  as  in  this.  Its  object  was  not  to  throw 
the  nation  out  of  the  road  which  it  had  been  following  in 
the  past  and  set  it  over  into  a  new  track.  Its  purpose  was 
only  to  remove  obstacles  from  the  way,  that  the  political 
progress  of  the  people  might  go  on  naturally  in  the  same 
path  which  for  centuries  it  had  been  following.  And  this 
was  what  it  did  effect. 

It  must  be  added  that  the  effect  of  this  revolution  was  as 
great  in  America  as  in  England.  It  came  as  a  strong  rein- 
forcement through  new  channels  to  the  ideas  of  government 
which  the  puritan  settlers  of  the  middle  of  the  century  had 
brought  with  them.  The  colonists  had  suffered  as  much  in 
their  charters  and  in  their  free  governments  from  the 
plans  of  Charles  and  James  as  the  English  at  home. 
Through  all  the  northern  colonies  they  had  sympathized 
deeply  with  the  opposition,  and  they  rejoiced  in  the  success 
of  the  revolution.  It  was,  however,  through  the  writings  of 
Locke  that  the  new  influence  was  most  directly  exerted  and 
longest  felt.  American  political  thinking  of  the  eighteenth 
century  was  as  profoundly  and  directly  affected  by  Locke 
as  was  French,  and  the  thought  of  these  two  countries  runs 
so  closely  parallel,  not  because  they  borrowed  from  each 
other,   but   because   both   learned    from    the   same   teacher. 


LOCKE'S  IDEAS  IN  AMERICA  361 

But  the  fundamental  ideas  of  Locke  —  the  sovereignty  of  the 
people,  government  resting  on  the  consent  of  the  governed, 
the  legislature  the  supreme  power  but  its  power  delegated 
by  the  people  who  may  withdraw  it,  the  executive  not  the 
director  but  the  agent  of  the  legislative  —  were  those  ex- 
pressed and  acted  upon  by  the  puritans  between  1642  and 
1660  and  built  into  the  foundations  of  the  American  colonies. 
The  course  of  events  in  James's  reign  has  been  followed  in 
rather  full  detail  because  it  makes  clearer  than  mere  descrip- 
tion in  words  can  do  the  character  of  the  crisis  and  what  was 
at  stake  in  it,  the  stage  in  which  the  constitution  stood  at  the 
time,  the  serious  danger  to  which  it  was  exposed,  and  the 
necessity  and  character  of  the  revolution  which  resulted. 

Bibliographical  Note. —  W.  C.  Abbott,  The  Origin  of  Eng- 
lish Political  Parties,  A.  H.  R.  xxiv,  578,  1919.  O.  Airy, 
Charles  II,  1904.  F.  Bate,  The  Declaration  of  Indulgence, 
1672,  1908.  A.  V.  Dicey,  The  Law  of  the  Constitution,  1915. 
G.  P.  Gooch,  English  Democratic  Ideas  in  the  Seventeenth  Cen- 
tury, 1898.  J.  Pollock,  The  Popish  Plot,  1903.  W.  A.  Shaw, 
The  Beginnings  of  the  National  Debt,  Owens  Coll.  Hist.  Essays, 
1907. 


CHAPTER  XV 

THE  MAKING  OF  THE  CABINET 

The  reign  of  William  and  Mary  opened  a  new  epoch  in 
English  constitutional  history  and  one  quite  different  from 
any  in  the  past.  The  old  struggle  in  the  old  form  was  ended. 
The  old  issue  between  the  limited  and  the  absolute  monarchy, 
which  had  dominated  more  or  less  openly  every  epoch  of  Eng- 
lish history  since  the  beginning  of  the  thirteenth  century, 
was  finally  settled.  The  old  absolutist  theory,  the  Stuart 
interpretation  of  the  constitution,  was  never  again  insisted 
upon  by  any  English  king.  We  shall  come  later  to  a  time 
when  a  vigorous  and  for  some  years  a  successful  effort  was 
made  by  a  king,  George  III,  to  recover  power,  but  it  will  not 
be  difficult  to  see  that  what  he  was  trying  to  regain  was  not 
what  was  lost  in  the  seventeenth  century,  but  what  was  lost 
after  1688.  It  can  even  be  said  still  further  that  questions 
involving  the  fundamental  meaning  of  the  constitution  hardly 
arise  again.  It  is  two  hundred  years  before  a  question  of 
the  kind  that  can  with  any  semblance  of  truth  be  called 
fundamental  becomes  a  leading  one  for  the  nation  to  decide. 
It  is  doubtful  if  even  that  question,  the  real  position  of  the 
house  of  lords  in  the  state,  should  be  considered  a  case  in 
point,  for  all  that  is  fundamental  in  that  question  was  vir- 
tually decided  in  1688.  The  new  epoch  starts  with  the  old 
issue  settled,  and  its  chief  endeavor  constitutionally  is  to 
learn  how  to  apply  that  settlement  more  and  more  completely 
to  all  the  details  of  government  operation,  and  to  devise  ef- 
fective machinery  for  carrying  it  out  in  practice.  Its  most 
striking  characteristic  is   institution-making,   and  the  chief 

institution  made  is  beyond  all  question  one  of  the  most  im- 

3G2 


WHY  NECESSARY  363 

portant  of  history,  we  may  perhaps  in  the  end  be  justified 
in  saying  the  most  important,  for  its  history  is  not  yet  fin- 
ished. The  new  institution  was  the  English  cabinet,  not 
meaning  by  that  the  cabinet  as  a  mere  institution,  but  the 
cabinet  system  of  government:  the  cabinet  as  controlled  by 
the  modern  doctrine  and  practice  of  ministerial  responsibil- 
ity. 

To  understand  the  beginning  of  the  cabinet  S3^stem  we 
must  go  back  to  the  restoration  of  1660.  The  restoration 
was,  as  we  have  seen,  a  compromise  by  which  the  form  of 
sovereignty  remained  with  the  king  while  the  reality  was 
transferred  to  parliament.  If  fully  carried  out  in  practice, 
this  compromise  would  mean  the  direct  supervision  and  con- 
trol of  all  lines  of  government  policy  and  executive  action 
by  the  legislative  assembly.  Such  an  arrangement  was  new 
to  all  human  experience  and  naturally  there  existed  no  ma- 
chinery by  which  it  could  be  carried  out  in  practice,  no  insti- 
tutional forms  through  which  a  legislature  could  exercise 
an  executive  authority  which  in  theory  it  did  not  have.  Con- 
stitutional machinery  for  the  practical  operation  of  the  com- 
promise must  be  devised  and  the  origin  and  growth  of  this 
machinery  is  the  origin  and  growth  of  the  cabinet  with  the 
principle  of  ministerial  responsibility  to  parliament.  Or 
we  may  state  the  fact  in  another  way :  the  English  system 
of  vesting  the  executive  authority  in  a  cabinet  virtually 
chosen  by  the  legislature  and  held  under  a  close  control  by 
it,  was  the  method  finally  devised  to  carry  out  in  the  practical 
operation  of  the  government  of  the  country  the  sovereignty 
of  parliament  which  had  resulted  from  the  constitutional 
advance  of  the  seventeenth  century. 

It  would  be  absurd  to  suppose  that  the  men  of  Charles 
IPs  reign,  or  any  later  reign,  were  conscious  that  here  was  a 
practical  problem  for  them  to  solve.  What  they  were  con- 
scious of  at  first  was  some  little  difficulty  in  harmonizing  the 
king's  policy  and  parliament's  policy  upon  a  common  line 
of  action,  and  such  conscious  efforts  as  were  made,  as  in  Sir 


364  THE  MAKING  OF  THE  CABINET 


William  Temple's  plan  for  a  reorganization  of  the  privy 
council,  were  directed  to  creating  a  mediating,  harmonizing 
body  between  these  two  great  powers.  These  conscious  ef- 
forts led  to  no  result.  So  far  as  any  progress  was  made 
under  Charles  II,  it  resulted  from  the  efforts  of  a  small  body 
of  ministers  who  were  in  the  confidence  of  the  king  and  at 
the  same  time  able  to  influence  the  action  of  parliament. 
The  earl  of  Clarendon,  who  was  for  a  time  one  of  these  min- 
isters, has  described  their  methods  in  words  which  are  espe- 
cially interesting  to  us  because  they  might  be  used  almost 
without  change  to  describe  methods  employed  in  Washington 
during  the  past  thirty  years  in  efforts  to  bring  the  influence 
of  the  president  to  bear  on  legislation.  He  says :  "  These 
ministers  [Clarendon  and  Southampton]  had  every  day  con- 
ference with  some  select  persons  of  the  house  of  commons, 
who  had  always  served  the  king,  and  upon  that  account  had 
great  interest  in  that  assembly,  and  in  regard  of  the  experi- 
ence they  had  and  their  good  parts  were  hearkened  to  with 
reverence.  And  with  those  they  consulted  in  what  method 
to  proceed  in  disposing  the  house,  sometimes  to  propose, 
sometimes  .to  consent  to  what  should  be  most  necessary  to  the 
public ;  and  by  them  to  assign  parts  to  other  men,  whom  they 
•found  disposed  and  willing  to  concur  in  what  was  to  be  de- 
sired: and  all  this  without  any  noise,  or  bringing  many  to- 
gether to  design,  which  ever  was  and  ever  will  be  ingrateful  to 
parliaments,  and,  however  it  may  succeed  for  a  little  time, 
will  in  the  end  be  attended  with  prejudice." 

As  a  matter  of  fact,  the  king  was  still,  and  for  a  long 
time  after,  the  real  executive.  He  chose  his  own  ministers 
and  controlled  their  policy  and  did  not  concern  himself  with 
parliament's  approval  of  them  nor  consistently  with  parlia- 
ment's approval  of  his  policy.  On  its  side  parliament  natur- 
ally regarded  the  new  methods  with  some  suspicion,  as  evi- 
dence of  intrigue  in  the  king's  interest,  but  it  knew  no  way 
of  exercising  its  power  of  final  decision  except  by  making 
a  square  issue  with  the  king,  nor  of  holding  the  king's  servant 


SLOW  PROGRESS  365 

responsible  except  by  asserting  a  direct  responsibility  en- 
forced by  the  old  practice  of  impeachment. 

The  situation  in  this  respect  was  not  changed  by  the  revo- 
lution of  1688.  That  revolution  was  not  a  decision  as  to 
particular  forms  or  machinery.  What  was  at  stake  once 
more  were  the  principles  which  underlay  all  forms,  and  the 
whole  nation  showed  that  it  was  determined  to  maintain  the 
settlement  of  1660  so  far  as  that  was  a  settlement  of  the 
fundamental  question  of  the  supremacy  of  parliament.  But 
we  may  be  sure  that  if  satisfactory  constitutional  machinery 
had  been  devised  during  the  reign  of  Charles  II  for  exercising 
that  supremacy  in  practice,  it  would  have  been  included  in 
the  settlement  of  1689.  But  it  had  not  been,  and  indeed 
in  1689  it  was  only  the  fundamental  principle  of  parlia- 
mentary supremacy  that  was  in  any  sense  apprehended. 
Neither  the  range  of  its  application  to  the  operation  of 
actual  government,  nor  the  method  of  its  application,  was 
yet  understood,  nor  was  the  latter,  which  is  the  principle  of 
ministerial  responsibility  applied  to  the  cabinet,  clearly  un- 
derstood for  another  century. 

With  the  accession  of  William  III  this  fundamental  ques- 
tion at  issue  between  king  and  parliament  was  settled,  as 
has  been  said,  never  to  be  raised  again.  The  characteristic 
feature  of  the  new  age  was  not  a  question  of  that  kind,  nor 
of  the  interpretation  of  the  constitution,  but  it  was  progress 
upon  the  new  task  of  devising  machinery  for  carrying  out 
in  actual  government  the  compromise  settlement  already 
reached.  In  workable  machinery  for  this  purpose,  the  age 
of  William  III  made  no  great  advance  over  that  of  Charles 
II.  The  mediating  body  still  consisted  of  a  small  and  informal 
group  of  ministers  who  enjoyed  the  confidence  of  the  king  and 
who  were  influential  in  parliament.  The  king  still  retained 
a  very  decided  control  over  the  conduct  of  government,  espe- 
cially in  foreign  affairs,  and  he  never  dreamed  of  allowing 
parliament  any  voice,  direct  or  indirect,  in  the  choice  of 
his  ministers. 


366  THE  MAKING  OF  THE  CABINET 


This  change  may  be  described  in  other  terms.  In  the 
reign  of  Charles  II  impeachment,  representing  the  old  form 
of  ministerial  responsibility,  was  a  survival,  in  the  scientific 
sense  of  the  word,  destined  speedily  to  disappear,  and  the 
new  and  modern  form  was  foreshadowed  on  its  institutional 
side  in  the  experiments  to  find  a  mediating,  harmonizing 
body  between  king  and  parliament.  Of  these  Sir  William 
Temple's  proposed  reorganization  of  the  privy  council  is 
the  most  famous,  but  it  is  not  the  one  from  which  the  modern 
form  developed.  That  came  more  directly  from  the  dis- 
liked and  suspected  ministerial  clique  which  the  king  himself 
formed,  though  rather  from  that  as  it  was  reestablished 
under  William  III  than  from  Charles  IPs.  The  birth  of  the 
idea  of  ministerial  responsibility  on  the  other  hand  can 
hardly  be  traced  back  so  far  and  is  to  be  found  coming  into 
existence  very  slowly  after  the  beginning  of  the  eighteenth 
century,  though  the  idea  was  in  a  sense  involved  in  such  an 
experiment  as  Sir  William  Temple's. 

William  III  began  his  reign  with  a  clear  recognition  on  his 
part  that  the  royal  office  had  been  shorn  of  extensive  powers. 
As  it  has  been  expressed  by  a  distinguished  historian  of  the 
constitution  :  "  The  king  was  to  be  distinctly  below  statute ; 
he  was  to  have  no  power  to  suspend  statutes  or  to  dispense 
with  statutes ;  he  could  not  by  his  proclamations  create  any 
new  offence ;  he  could  not  keep  a  standing  army  in  the  realm 
in  time  of  peace  without  the  consent  of  parliament ;  parlia- 
ment had  begun  to  appropriate  supplies  ;  the  military  tenures 
were  gone ;  he  had  no  powers  of  purveyance  and  preemption ; 
he  could  not  try  men  by  martial  law;  the  judges  were  no 
longer  to  hold  office  during  his  good  pleasure ;  the  courts  of 
politicians  whereby  the  Tudors  and  two  first  Stuarts  had 
enforced  their  will  were  gone,  there  was  no  Star  Chamber, 
no  High  Commission."  We  may  add:  he  could  make  no 
laws  without  the  consent  of  the  nation's  representatives;  he 
could  lay  no  taxes  ;  he  could  claim  no  kingship  by  divine  right, 
for  the  divine  line  had  been  set  aside  by  act  of  parliament, 


n 


THE  KING'S  REMAINING  POWERS  367 

and  upon  that  act  alone  his  title  rested ;  he  could  hold  no 
man  in  confinement  without  a  speedy  trial ;  his  ministers  and 
officers  were  personally  liable  in  damages  to  any  individual  if 
they  exceeded  their  powers,  and  it  was  clearly  recognized 
that  they  were  responsible  with  their  lives  to  parliament  for 
the  policy  which  they  carried  out,  even  if  it  was  known  to 
be  the  king's  and  not  theirs.  All  these  limitations  William 
III  knew  and  accepted. 

Still  the  king  was  by  no  means  a  figurehead,  and  his  prac- 
tical powers  were  much  greater  than  those  of  the  king  today. 
The  whole  realm  of  government  policy,  the  determination  of 
the  conduct  of  the  government,  of  what  it  should  strive  for 
and  how  it  should  do  it,  was  in  his  hands  alone.  The  prog- 
ress of  the  constitution  had  deprived  the  king  of  a  number 
of  specific  ways  by  which  his  policy  might  be  carried  out  or 
enforced ;  in  extreme  cases  of  opposition  his  advisers  might 
be  held  responsible  for  that  policy ;  in  appropriations  and  in 
the  auditing  of  accounts  a  far  more  effective  method  of  con- 
trolling policy  was  beginning;  if  new  law  were  necessary, 
as  would  almost  certainly  be  the  case  if  he  adopted  a  new 
financial  policy,  recourse  must  be  had  to  parliament ;  but  as 
yet  the  heart  of  the  matter  had  not  been  reached.  It  was 
still  the  executive  and  not  parliament  which  determined  the 
direction  of  government  policy,  and  the  executive  was  not 
yet  under  immediate  parliamentary  control.  He  was  not 
obliged  to  consult  parliament  in  any  way,  directly  or  indi- 
rectly, in  advance  of  a  decision.  This  was  even  more  true 
in  foreign  affairs  than  in  domestic,  as  it  is  today  for  that 
matter,  and  in  the  time  of  William  III  foreign  policy  de- 
termined domestic  more  completely  than  has  been  commonly 
the  case  in  later  periods  of  history. 

Parliament  was  in  the  end  to  secure  a  direct  control  of 
government  policy  by  obtaining  an  indirect  control  over 
the  appointment  and  dismissal  of  ministers.  As  yet  not 
even  a  beginning  had  been  made  in  this  direction.  The  mod- 
ern kind  of  control  did  not  grow  out  of  impeachment.     It 


368  THE  MAKING  OF  THE  CABINET 

arose  from  a  discovery  in  the  practical  operation  of  gov- 
ernment, in  attempting,  as  has  been  said,  to  bring  together 
in  a  common  policy  the  king  and  the  majority  in  the  house 
of  commons.  William  III  made  the  first  approaches  to  the 
discovery,  though  it  is  highly  improbable  that  he  had  any 
conception  of  its  meaning,  nor  did  he  ever  recognize  any  com- 
pulsion, not  even  the  compulsion  of  the  existing  situation, 
in  his  selection  of  ministers.  To  the  end  of  his  reign  he  was 
entirely  free  in  his  choice  of  the  members  of  his  privy  council. 
In  selecting  also  those  members  of  it  who  were  to  hold  the 
offices  of  state  and  so  to  form  the  ministry,  that  is  the  cab- 
inet not  so  much  in  the  later  English  as  in  the  American  sense, 
his  special  advisers,  he  felt  no  binding  obligation  to  con- 
sider their  relation  to  the  distribution  of  party  strength  in 
parliament.  When  he  did  consider  it,  it  was  a  matter  of 
convenience  not  of  obligation.  In  other  ways  too  his  free- 
dom in  this  matter  was  greater  than  that  of  a  present-day 
king.  He  was  not  limited  to  the  advice  of  his  ministry.  He 
might  and  did  ask,  and  be  influenced  by,  the  advice  of  men 
who  held  no  official  relation  to  the  government.  He  might 
and  did  disregard  the  advice  of  his  ministers.  He  might 
and  did  act  in  exceedingly  important  matters,  binding  the 
future  action  of  the  nation,  without  seeking  their  advice  at 
all.  The  final  decision  of  all  questions  of  policy  was  his. 
William  III  was  a  limited  monarch.  He  was  not,  and  could 
not  possibly  be,  an  absolute  king  of  the  type  of  his  perennial 
opponent,  Louis  XIV,  but  the  English  constitution  had  much 
growth  to  make  before  it  should  reach  the  kingship  of  the 
twentieth  century. 

At  the  accession  of  William  and  Mary  the  two  political 
parties,  whig  and  tory,  had  as  definite  existence  and  were  as 
clearly  distinguished  from  one  another  as  at  any  later  time, 
and  party  spirit  was  as  bitter.  William's  first  parliament, 
the  convention  parliament,  was  strongly  whig,  but  he  believed 
not  merely  that  he  could  form  a  successful  government  by 
uniting  both  parties  in  the  ministry,  but  that  he  ought  to 


NO  OFFICIAL  CABINET  369 

do  so,  that  his  government  would  then  be  stronger  and  that  he 
would  be  free  from  any  danger  of  being  the  king  of  a  party  or 
a  faction.  If  the  idea  which  was  half  consciously  held  in 
Charles  IPs  time,  that  the  ministry  should  be  a  mediating 
body  between  a  powerful  king  and  a  powerful  parliament  was 
to  prevail,  it  was  very  likely  a  necessity  of  human  nature  to 
move  towards  its  realization  first  of  all  by  working  out  the 
experiment  of  a  coalition  ministry.  At  any  rate  it  would 
seem,  in  the  absence  of  much  experience,  a  reasonable  method 
of  getting  a  mediating  body.  We  must  remember  also  that 
there  was  at  the  beginning  no  such  definite  combination  of 
officers  into  a  distinct  group  as  we  have  in  the  cabinet.  There 
was  a  privy  council  which  was  a  definite  body.  There  were 
various  recognized  committees  of  the  privy  council,  and  had 
been  for  many  generations,  which  had  charge  of  distinct 
government  interests,  but  the  incipient  cabinet  was  some- 
thing different  from  these,  something  less  formal  and  au- 
thorized. There  was  a  group  of  executive  and  administra- 
tive offices  of  more  or  less  high  rank  and  power  whose  holders 
belonged  to  the  privy  council,  and  who  sometimes  had  co- 
hesion enough  to  stand  together  against  opposition  attacks 
in  parliament.  But  there  was  no  definite  notion  as  yet  that 
these  officers  formed  an  organized  body  within,  but  distinct 
from,  the  council,  having  as  a  group  a  special,  or  even  a 
semi-official,  relation  to  the  formation  and  direction  of  policy. 
A  given  man  was  put  into  office  because  he  was  an  influential 
leader  in  parliament  and  the  nation,  and  the  king  asked  his 
advice  for  the  same  reason,  but  he  grouped  together  as  he 
pleased  those  men  whom  he  wished  to  consult  in  a  body,  leav- 
ing out  some  the  great  office-holders  and  including  on  occa- 
sion some  who  were  not  among  them.  The  whole  conception 
was  still  rather  individual  than  corporate.  When  men  did 
get  any  glimpse  of  a  definite  body  seeming  to  stand  apart 
from  the  council  and  together  enjoying  influence  upon  gov- 
ernment, it  was  to  condemn  it  as  improper  and  dangerous. 
As  a  matter  of  historical  fact  the  change  in  both  these  par- 


370  THE  MAKING  OF  THE  CABINET 

ticulars,  the  recognition  of  a  corporate  cabinet  and  of  its 
usefulness  instead  of  danger  to  the  constitution,  was  wrought 
out  by  experience  with  coalition  ministries. 

William's  experimenting  began  with  his  first  ministry. 
The  convention  parliament  was  strongly  whig,  but  the  offices 
were  filled  with  tory  as  well  as  whig  leaders.  If  the  belief 
was  that  the  coalition  would  tend  to  harmonize  the  two 
parties  the  result  must  have  been  a  disappointment,  for 
factional  quarrels  were  common  both  in  the  ministry  and  in 
parliament.  The  first  election  of  the  reign,  in  1690,  gave  the 
tories  a  majority,  and  ministerial  changes  followed  by  which 
the  number  of  whig  officers  was  reduced  and  of  tory  in- 
creased ;  but  if  the  result  was  "  greater  harmony  between  the 
parliament  and  the  court,"  the  effect  was  not  striking  enough 
either  to  teach  the  lesson  to  be  learned  or  to  change  the  prac- 
tice of  coalition  ministries.  On  leaving  England  for  Ire- 
land in  the  same  year,  William  appointed,  to  assist  the  queen 
during  his  absence,  a  special  council  of  nine,  made  up  almost 
equally  from  the  two  parties. 

Some  modifications  of  the  ministry  in  1692  are  not  of  par- 
ticular importance,  but  with  1693  began  a  series  of  changes 
the  significance  of  which  has  sometimes  been  exaggerated. 
The  earl  of  Sunderland,  who  seems  to  have  been  for  some 
time  a  believer  in  that  policy,  is  said  to  have  urged  upon  the 
king  the  wisdom  of  making  up  his  ministry  entirely  from  one 
party,  in  this  case  from  the  whigs.  By  degrees  that  was 
done,  and  by  1696  the  cabinet  was  formed  which  was  known 
as  the  "  junto,"  a  name  which  implied  not  merely  that  the 
combination  was  noticed  but  that  it  was  not  approved.  The 
election  of  1695  returned  a  whig  house  of  commons,  but  the 
junto  cannot  be  regarded  as  opening  the  continuous  history 
of  the  modern  cabinet,  for  when  the  election  of  1698  went 
the  other  way  the  ministry  felt  no  obligation  to  resign,  and 
the  necessary  connection  between  cabinet  and  parliamentary 
majority  was  not  recognized  for  many  years. 

The  election  of  1698,  however,  demonstrated  the  suprcm- 


PROBLEM  OF  RESPONSIBILITY  371 

acy  of  parliament  over  king,  when  it  thought  the  matter 
important,  for  the  policy  of  retrenchment  and  reduction  of 
the  army  which  it  adopted,  with  unhappy  results,  was  op- 
posed to  the  strong  desires  of  William,  though  he  felt  obliged 
to  yield.  In  the  remaining  changes  of  William's  reign  no 
new  principle  or  practice  was  introduced.  The  ministry  be- 
came more  tory,  but  the  insolent  acts  of  Louis  XIV  united 
the  nation,  including  the  tory  party,  in  support  of  William's 
foreign  policy,  which  led  to  the  war  which  he  did  not  himself 
live  to  conduct.  The  total  result  of  William's  reign,  which 
he  passed  on  to  his  successor,  Queen  Anne,  can  hardly  be 
described  as  more  than  tendency,  but  in  one  respect  it  was 
a  tendency  which  had  long  prevailed  and  could  no  longer 
be  successfully  opposed.  This  feature  of  the  result  was  the 
tendency  to  commit  the  control  of  national  affairs  to  a  small 
group  within  the  council  composed  of  the  holders  of  the 
great  offices,  a  group  distinct  enough  to  be  often  recognized 
and  given  a  name,  but  not  authorized  nor  even  permitted  by 
any  law.  The  great  step  remaining  to  be  taken  after  this, 
in  the  formation  of  the  cabinet  system  of  government,  was 
to  discover  and  to  carry  into  effect  in  practice  the  relation 
between  the  directing  group  of  ministers  and  the  parliamen- 
tary majority. 

Naturally,  as  they  were  as  yet  unconscious  of  the  relation- 
ship, this  was  not  the  difficulty  which  troubled  contempor- 
aries. What  seemed  to  them  the  great  danger,  in  the  change 
which  they  were  vaguely  conscious  of,  was  the  secrecy  of 
the  cabinet  action  and  the  difficulty  of  holding  the  members 
responsible  for  their  advice  to  the  king.  Impeachment, 
which  was  the  medieval  method  of  holding  ministers  to  a  di- 
rect responsibility  to  parliament,  had  only  just  been  put 
into  its  perfected  form.  But  since  the  supremacy  of  parlia- 
ment, which  had  been  established  in  1660  and  confirmed  in 
1 688,  was  not  direct  but  indirect,  and  was  not  legally  recog- 
nized, impeachment  was  a  less  suitable  method  of  control 
than  it  had  been.     What  was  needed  to  make  the  new  posi- 


372  THE  MAKING  OF  THE  CABINET 

tion  of  parliament  effective  was  not  a  means  of  punishing 
ministers  for  what  they  had  done,  but  a  means  of  making 
the  authority  of  parliament  effective  throughout  the  process 
of  deciding  what  to  do.  Only  in  such  a  way  could  there  be 
exercised  a  real  supremacy  which  was  nevertheless  indirect. 
Naturally  also  the  men  of  the  time  did  not  realize  this  need. 
The  whole  process  of  this  most  important  constitutional 
change  was  unconscious,  and  this  fact  must  never  be  over- 
looked. 

What  contemporaries  did  think  they  perceived  was  that 
they  were  losing  the  means  of  holding  ministers  responsible. 
Impeachment  seemed  to  be  slipping  out  of  their  hands  and 
nothing  taking  its  place.  Early  in  the  reign,  in  rather 
stormy  debates  on  the  mismanagement  of  the  war  by  the  gov- 
ernment, in  the  autumn  of  1692,  members  of  parliament 
bitterly  attacked  the  cabinet  as  not  belonging  among  Eng- 
lish institutions :  "  not  to  be  found  in  our  Law-books,"  said 
one  member;  "that  has  not  been  the  method  of  England," 
said  another ;  and  as  avoiding  responsibility  by  the  secrecy 
of  their  advice ;  "  you  cannot  punish  them  because  you  have 
no  light  on  their  actions."  That  ministers  should  be  re- 
quired to  sign  the  advice  they  gave  was  urged  by  several 
members.  In  the  next  year's  session,  when  the  commons 
were  made  angry  by  William's  veto  of  the  bill  excluding 
office-holders  from  the  house,  it  was  suggested  that  the  king 
himself  could  be  coerced  by  refusing  to  grant  money.  Im- 
peachments were  several  times  threatened,  but  none  attempted 
until  near  the  end  of  the  reign  in  1701. 

Impeachment  had  been  devised  in  the  struggle  between 
king  and  parliament  over  the  old  issue,  the  seat  of  sovereignty 
in  the  state.  Its  purpose  was,  exactly  like  that  of  chapter 
61  of  Magna  Carta  and  every  other  expedient  of  the  old 
type,  to  hold  the  king  to  a  real  responsibility  without  the 
danger  of  civil  war  and  revolution  which  would  result  in 
those  centuries,  and  perhaps  at  any  time,  from  holding  him 
to  a  formal  responsibility.     For  this  purpose  it  was  the  most 


IMPEACHMENT  OBSOLETE  373 

effective  of  all  the  older  expedients,  though  all  of  them  were 
in  a  way  successful,  when  the  king  did  not  obstinately  in- 
sist upon  his  own  responsibility.  But  that  issue  was  now 
settled.  It  never  reappeared  after  the  revolution  of  1688. 
The  real  issues  were  no  longer  those  of  a  fundamental  in- 
terpretation of  the  constitution  between  king  and  parliament, 
but  those  of  purpose  and  policy  in  the  daily  operation  of 
government  between  the  leaders  of  groups  of  opinion  in  the 
nation  whose  equal  loyalty  to  the  constitution  was  uncon- 
sciously accepted  early  in  the  period.  In  such  a  situation 
it  was  instinctively  felt  that  it  was  an  unworthy  use  of  a 
party  advantage  to  subject  the  leaders  of  the  opposite  side 
to  a  criminal  prosecution  and,  though  it  was  not  yet  seen 
what  could  be  used  in  its  place  to  enforce  responsibility,  im- 
peachment was  tacitly  dropped. 

The  same  fate  overtakes  the  royal  right  of  absolute  veto 
during  the  period  of  this  chapter  and  for  the  same  reason. 
William  III  made  use  of  this  right  four  times,  always  ex- 
citing thereby  some  indignation  on  the  part  of  parliament; 
and  Queen  Anne  used  it  once.  But  it  was  as  out  of  harmony 
with  the  new  phase  of  constitutional  growth  upon  which 
England  had  entered  as  impeachment.  The  one  was  a 
weapon  of  parliament  against  the  king,  and  the  other  of 
king  against  parliament  in  a  conflict  of  the  old  sort  between 
executive  and  legislature.  But  conflicts  of  the  old  sort  were 
no  longer  possible.  Conflicts  of  the  new  age  were  not  to  be 
between  legislature  and  executive  for  supremacy  in  the  state, 
but  between  different  groupings  of  public  opinion  represented 
by  parties  in  the  legislature ;  and  both  the  nominal  executive, 
the  king,  and  the  real  executive,  the  cabinet,  were  to  be  wholly 
dependent  on  the  legislative  result.  The  veto  has  never  been 
used  since  Queen  Anne's  time,  but  there  was  much  discussion 
a  few  years  since  of  the  king's  right  to  use  it  in  order  to  com- 
pel the  submission  of  questions  of  special  importance  to  a 
popular  vote  or  referendum. 

In  the  last  year  of  William's  reign  a  constitutional  act  of 


374.  THE  MAKING  OF  THE  CABINET 

almost  equal  significance  to  the  Bill  of  Rights  was  adopted 
by  parliament  —  the  Act  of  Settlement.1  It  had  become 
necessary  to  resettle  the  succession  to  the  crown  because  of 
the  successive  deaths  of  Queen  Mary  and  the  duke  of  Glou- 
cester, Anne's  last  surviving  child.  In  this  necessity  parlia- 
ment passed  over  all  the  intervening  heirs  to  the  throne, 
upon  the  principle  of  strict  hereditary  succession,  who  were 
catholics,  and  declared  the  next  heir  to  Anne  to  be  the  elect- 
ress  Sophia  of  Hanover,  a  granddaughter  of  James  I  and 
the  nearest  protestant  among  the  descendants  of  the  ancient 
kings.  In  principle  this  was  an  assertion  of  the  right  of 
parliament  to  determine  who  should  be  king  no  more  extreme 
than  that  made  in  the  Bill  of  Rights,  but  it  was  more  striking 
because  the  number  of  possible  heirs  passed  over  was  greater, 
and  the  heir  selected  was  in  a  more  remote  degree  related  to 
the  reigning  sovereign.  Greater  violence  seemed  to  be  done 
to  the  right  of  the  direct  line.  It  was  an  emphatic  repetition 
of  the  principle  that  the  throne  of  England  was  not  held  by 
divine  right.  The  princes  of  the  house  of  Hanover,  who  came 
to  the  crown  by  virtue  of  this  act,  have  several  times  publicly 
recognized  these  facts  and  have  declared  that  their  only  title 
to  reign  is  the  consent  of  the  nation. 

Advantage  was  taken  of  the  fact  that  the  succession  must 
be  settled  to  include  in  the  act  some  constitutional  enact- 
ments of  the  nature  of  those  in  the  Bill  of  Rights.  The  ten- 
ure of  judges  was  at  last  made  by  law  to  be  during  good  be- 
havior, and  further  they  were  to  be  removable  only  on  an 
address  from  both  houses  of  parliament.  It  was  also  made 
law  that  a  pardon  could  not  be  plead  to  bar  an  impeachment. 
Two  other  provisions  were  of  more  doubtful  wisdom.  In 
them  parliament  attempted  to  destroy  the  beginnings  of  the 
cabinet  system  in  order  to  protect  what  it  believed  to  be  its 
means  of  enforcing  responsibility  and,  if  these  provisions 
had  been  put  into  force,  would  have  succeeded  in  doing  so. 
One  of  them  required  that  all  business  of  the  council  should 

iA.  and  S.,  475-479;  Robertson,  Statutes,  151-156. 


HOSTILE  LEGISLATION  375 

be  transacted  in  the  privy  council  and  not  elsewhere,  that 
is,  not  by  the  suspected  junto  or  cabal  alone,  and  that  the 
members  of  the  council  should  furnish  the  evidence  of  their 
responsibility  by  attaching  their  signatures  to  the  resolu- 
tions to  which  they  consented,  and  the  other  forbad  the  elec- 
tion to  the  house  of  commons  of  any  officers  or  pensioners 
of  the  crown,  including  of  course  the  ministers.  That  is  to 
say,  parliament  had  so  little  conception  of  how  best  to  realize 
its  own  supremacy  that  it  deliberately  tried,  in  the  interest 
of  an  obsolete  method,  to  end  the  line  of  progress  which  was 
bringing  in  the  most  effective  means  ever  devised,  or  ap- 
parently devisable,  for  operating  a  republic  under  the  forms 
of  a  monarchy. 

Neither  of  these  provisions  went  into  force.  It  was  felt 
that  the  first  unduly  restricted  the  independence  of  ministers 
in  giving  advice  to  the  king,  and  it  was  repealed  soon  after 
the  accession  of  Anne.2  The  purpose  directly  intended  by 
the  second  was  not  merely  to  protect  the  house  of  commons 
from  the  influence  of  the  king's  ministers,  but  to  cut  off  one 
of  the  most  effective  means  by  which  the  king  had  sought 
to  control  the  action  of  the  house,  through  office-holders  and 
the  use  of  offices  and  pensions  as  bribes.  William  III  himself 
had  made  free  use  of  this  means.  It  was  soon  felt,  however, 
that  the  act  had  gone  too  far  in  excluding  the  members  of 
the  ministry  from  parliament ;  that  the  practical  inconven- 
iences would  more  than  outweigh  the  gains.  The  provision 
was  repealed  at  the  same  time  as  the  first,  but  two  years  later 
a  new  act  on  the  subject  was  passed  which  with  some  modi- 
fications is  still  in  force.  It  provided  that  no  person  holding 
any  office  created  after  October  25,  1705,  or  certain  other 
offices  named,  could  sit  in  the  house  of  commons,  and  that  any 
member  accepting  any  other  office  than  these  should  vacate 
his  seat,  but  might  be  reelected.  Since  that  date  new  minis- 
terial offices  have  been  placed  in  the  second  class  by  the 
statute  creating  them.     Had   the  two   requirements   of   the 

2  A.  and  S.,  483-485;  Robertson,  Statutes,  185-186. 


376  THE  MAKING  OF  THE  CABINET 

Act  of  Settlement  remained  in  force,  the  future  development 
of  the  cabinet,  under  the  most  favorable  conditions  remain- 
ing, if  it  had  continued  to  develop  at  all,  could  have  led  only 
to  such  a  result  as  was  later  arrived  at  in  the  American 
cabinet,  an  administrative  and  advisory  cabinet  merely.  It 
could  not  have  arrived  at  cabinet  government  and  ministerial 
responsibility  of  the  modern  kind.  As  we  shall  see,  the  king 
was  not  by  this  act  entirely  deprived  of  the  means  of  influ- 
encing the  house  of  commons  illegitimately,  but  the  prin- 
ciple was  established  and  good  progress  made  in  applying  it. 

While  the  chief  constitutional  significance  of  William's 
reign  is  to  be  found  in  the  progress  made  towards  cabinet 
government,  there  are  other  steps  of  advance  which  should 
not  be  overlooked.  Religious  toleration  was  brought  a  little 
nearer.  Efforts  made  before  1688  to  relieve  protestant  dis- 
senters from  some  of  their  worst  disabilities  all  failed,  but 
in  the  first  session  of  the  convention  parliament  a  toleration 
act  was  passed.3  The  Clarendon  code  was  not  repealed, 
but  protestants,  except  unitarians,  who  would  take  the  oaths 
of  allegiance  and  supremacy  and  make  the  declaration  against 
transsubstantiation  were  relieved  from  the  penalties  against 
conventicles  and  absence  from  church.  On  the  same  con- 
ditions and  after  signing  the  thirty-nine  articles,  except  three 
and  part  of  another,  dissenting  ministers  might  preach  and 
administer  the  sacraments,  and  their  meeting-houses  were 
protected  if  registered.  There  was  a  relapse  towards  in- 
tolerance under  Anne,  in  the  act  forbidding  the  "  occasional 
conformity  "  of  dissenting  office-holders  and  the  schism  act 
against  dissenting  schools,  but  these  were  both  repealed  in 
1718,  and  soon  dissenters  were  in  practice  allowed  to  hold 
office,  annual  indemnity  acts  being  passed  to  relieve  them  of 
penalties.  The  toleration  act  was  not  extended  to  Ireland, 
and  the  result  was  the  great  Scotch-Irish  immigration  into 
the  American  colonies  in  the  thirty  years  following  the  revo- 
lution of  1688. 

s  A.  and  S.,  459-462;  Robertson,  Statutes,  123-128. 


CONSTITUTIONAL  LEGISLATION  377 

The  annual  meeting  of  parliament  was  secured  after  the 
revolution,  by  limiting  the  force  of  the  mutiny  act  for  the 
organization  and  discipline  of  the  army  to  one  year  only, 
and  by  a  similar  limitation  of  the  validity  of  appropriations.4 
In  1694  a  triennial  act  was  passed,  after  being  once  vetoed  by 
the  king,  requiring  a  parliament  to  be  held  at  least  once  in 
three  years,  and  also  limiting  the  life  of  any  parliament  to 
three  years.5  In  1695  the  house  of  commons  refused  to  re- 
new the  licensing  act,  which  had  created  a  censorship  of  the 
press  and  which  had  recently  expired.  Since  that  date  the 
press  in  England  has  been  in  law  and  form  free,  and  has 
actually  been  without  censorship,  but  a  stamp  act  was  passed 
under  Anne  which  bore  heavily  on  weaker  publications  and 
acted  as  a  restraint  on  new  ones.  The  development  of  the 
newspaper  press  after  the  revolution  was,  however,  rapid,  and 
its  use  for  political  propaganda  and  to  give  voice  to  po- 
litical opinion  after  the  modern  manner  was  greatly  in- 
creased. Harley,  in  the  reign  of  Anne,  is  said  to  have  been 
the  first  minister  to  use  the  press  for  political  purposes. 
An  important  act  was  passed  in  1696  regulating  trials  for 
treason,  giving  to  the  accused  greater  securities,  and  clearly 
requiring  two  witnesses,  not  necessarily  to  the  same  overt  act, 
as  the  American  constitutional  provision  requires,  but,  it 
might  be,  to  two  acts  of  the  same  treason.6  The  financial 
legislation  of  the  reign,  fixing  the  "  civil  list  "  7  and  more 
especially  organizing  a  permanent  national  debt  and  estab- 
lishing the  Bank  of  England,  while  not  strictly  constitu- 
tional in  character,  had  important  constitutional  conse- 
quences in  rendering  the  results  of  the  revolution  secure  and 
strengthening  the  hands  of  its  supporters. 

The  reign  of  Anne  constitutionally  is  a  natural  continua- 
tion of  William's   along  the  same  lines  and  with  the  same 

4  A.  and  S.,  457-459;  Robertson,  Statutes,  108-115. 
s  A.  and  S.,  471;  Robertson,  Statutes,  138-139. 
e  A.  and  S.,  472-4-75;  Robertson,  Statutes,  140-144. 
7  A.  and  S.,  456. 


378  THE  MAKING  OF  THE  CABINET 

characteristics.  Rather  more  than  in  William's  reign  the 
growth  of  cabinet  government  is  the  chief  interest,  but  it  is 
a  growth  not  marked  by  any  sudden  or  decisive  advance  but 
by  slowly  increasing  understanding  of  how  cabinet  govern- 
ment is  to  be  worked  and  what  it  implies.  At  the  accession 
of  Anne  the  whigs  had  a  majority  in  parliament  and  the 
cabinet  was  one  of  William's  type,  made  up  from  both  parties. 
Anne  herself  was  in  inclination  rather  strongly  tory,  and 
so  were  her  especial  friends,  Marlborough  and  his  wife.  Un- 
der this  influence  of  personal  preference  the  queen  began  al- 
most immediately  to  make  the  ministry  over,  until  it  became 
with  slight  exception  wholly  tory.  The  first  election  re- 
turned a  strong  tory  majority,  but  the  election  followed  the 
cabinet  change,  which  was  made  with  an  existing  whig  ma- 
jority, and  could  have  no  influence  upon  it. 

The  cabinet  thus  formed  remained  nominally  in  power 
until  the  great  change  in  1710;  that  is,  it  remained  under 
the  control  of  the  two  men  who  were  most  influential  in  its 
formation,  Godolphin  and  Marlborough ;  but  it  underwent 
many  internal  changes  which  in  their  general  character  are 
important.  First  the  more  extreme  tories  were  removed 
and  more  moderate  ones  put  in  their  places.  Then  Marl- 
borough found  the  whigs  more  inclined  to  support  the  war, 
and  tories  were  removed  and  the  ministry  became  more  whig. 
Finally,  in  1708,  an  intrigue  of  Harley's  a  leader  of  the 
moderate  tories,  to  make  himself  more  powerful,  failed  and 
resulted  in  the  removal  of  the  moderate  tories,  and  the 
ministry  became  entirely  whig  and  remained  so  until  its 
fall  in  1710. 

The  sudden  and  complete  fall  of  the  ministry  in  1710  is 
one  of  the  most  dramatic  events  in  early  party  history.  It 
was  brought  about,  the  opportunity  was  given  to  the  queen 
to  dismiss  it,  by  the  impeachment  of  Dr.  Sacheverell,8  a  tory 
preacher,  who  on  Guy  Fawkes's  day  in  1709  glorified,  in  a 
sermon  in  St.  Paul's,  the  old  extreme  tory  doctrines  of  non- 
8  Robertson,  Statutes,  421-437. 


DEFENCE  OF  THE  REVOLUTION  379 

resistance  and  passive  obedience,  and  violently  attacked  the 
principles  on  which  the  revolution  of  1688  had  been  carried 
through.  The  ministry  did  not  anticipate  the  violent  re- 
action of  public  sentiment  which  they  were  about  to  produce, 
and  they  determined  to  impeach  him  as  a  vindication  of  the 
whig  principles  of  the  revolution.  Burke  believed  the  cabinet 
justified  in  what  it  did.  The  impeachment  of  Dr.  Sach- 
everell,  he  said,  "  was  carried  on  for  the  express  purpose  of 
stating  the  true  grounds  and  principles  of  the  Revolution." 
Most  students  of  the  period  have  agreed  with  Burke.  The 
ministry  could  not  neglect  its  own  defence  against  so  deadly 
an  attack.  The  trial  was  pressed  upon  the  fundamental 
issue,  the  right  of  the  nation  and  of  parliament  to  resist  the 
king  as  a  principle  and  as  acted  upon  throughout  English 
history,  and  the  tory  answer  in  defence  was  obliged  virtually 
to  admit  the  main  point  and  to  avoid  the  conclusion  by  as- 
serting that  the  supreme  power  which  must  not  be  resisted 
was  the  legislature,  not  the  executive.  The  ministry  suc- 
ceeded in  its  chief  purpose,  but  its  success  was  fatal  to  itself. 
The  feeling  in  the  country  in  general  was  so  violent  against 
the  cabinet  that  the  queen  was  encouraged  to  turn  out  j 
the  whigs,  whom  she  disliked,  and  bring  in  a  strong  tory 
ministry.  "  A  change  so  complete  and  a  ministry  politically 
so  homogeneous  had  not  been  constituted  since  the  revolu- 
tion." This  cabinet,  with  minor  changes,  remained  in  office 
to  the  end  of  the  reign. 

In  each  of  the  three  chief  cabinet  changes  of  Anne's  time 
the  general  election  which  soon  followed  returned  a  strong 
majority  for  the  new  ministry,  but  the  change  was  made  with 
the  existing  majority  against  it,  by  a  direct  exercise  of  the 
prerogative  of  appointment  and  dismissal,  sometimes  as  an 
expression  of  the  queen's  own  personal  like  and  dislikes,  and 
intrigues  of  the  queen's  bed-chamber  still  had  influence  on 
the  making  and  unmaking  of  ministries.  More  frequently 
and  in  a  more  marked  degree  than  William  III  had  done, 
Anne  accepted  ministers  and  ministries  that  she  did  not  per- 


380  THE  MAKING  OF  THE  CABINET 

sonally  like  or  even  to  which  she  was  strongly  opposed.  She 
did  it,  however,  not  because  a  parliamentary  majority  would 
have  insisted  upon  the  change  as  a  condition  of  doing  busi- 
ness with  the  ministry,  but  because  she  and  her  ministers 
found  it  easier  in  this  way  to  secure  the  support  they  de- 
sired for  the  war.  It  may  be  said  that  this  is  practically 
the  same  thing,  but  we  can  say  so  because  the  later  history 
has  taught  us  the  identification.  The  people  of  Queen 
"Anne's  time  did  not  yet  see  the  connection  beween  the  three 
elements  of  the  problem,  the  parliamentary  majority,  the 
cabinet,  and  the  successful  carrying  out  of  government 
policy.  The  events  of  her  reign  and  the  experience  gained, 
however,  were  rapidly  making  clear  both  the  dependence  of 
cabinet  and  policy  upon  parliament  and  the  greater  strength 
and  stability  of  a  party  ministry  over  a  coalition.  It  must 
be  added  that  Anne's  lack  of  interest  in  political  affairs  and 
lack  of  knowltdge  of  international  questions  left  business  of 
great  importance  to  be  settled  by  the  cabinet,  as  had  not 
before  been  the  case,  certainly  not  under  William. 

The  act  of  union  with  Scotland  9  adopted  early  in  1707, 
may  be  considered  an  extreme  instance  of  the  exercise  of  con- 
stitutional powers  by  parliament  since  it  brought  the  legis- 
lative independence  of  Scotland  to  an  end  without  direct 
authorization  by  the  people  or  expressed  acceptance  of  the 
measure.  The  British  theory  of  the  sovereignty  of  parlia- 
ment, however,  makes  the  act  entirely  within  its  competence, 
I  and  there  was  no  doubt  but  that  the  people  of  both  nations 
were  in  favor  of  the  step.  It  served  as  a  precedent  for  no 
extension  of  the  powers  of  parliament.  Scotland  received 
representation  in  both  houses  of  what  thus  became  the  British 
parliament,  and  retained  complete  control  of  ecclesiastical 
matters  and  of  the  judicial  administration  of  the  law  in  the 
courts.  The  queen  made  an  unusual  but  still  unquestionable 
use  of  her  prerogative  in  the  creation  of  twelve  peers  at  once, 
in  1711,  in  order  to  secure  a  tory  majority  in  the  house  of 

o  A.  and  S.,  479^«3:  Robertson,  Statutes,  162-179. 


SUMMARY  OF  PROGRESS  381 

lords,  and  she  exercised  her  veto  power  once,  the  last  time 
in  history  that  it  was  used.  In  the  case  of  Ashby  vs.  White 
and  of  the  Aylesbury  men  against  the  returning  officers  for 
rejecting  their  votes,  the  house  of  commons  failed  in  what  was 
really  an  attempt  to  fix  the  qualifications  for  suffrage  in 
parliamentary  elections  by  their  action  alone  rather  than 
by  statute.10  In  1711  an  act  was  passed  requiring  a  prop-' 
erty  qualification  of  members  of  the  house  of  commons,  £600 
per  year  derived  from  land  for  county  representatives,  and 
£300  also  from  land  for  borough  members.  This  act  re-) 
mained  in  force  for  more  than  a  century. 

Great  progress  has  been  made  in  these  two  reigns  in  the" 
transition  to  cabinet  government,  but  greater  still  remained 
to  be  made.  At  the  death  of  Anne  the  cabinet,  as  a  definite 
body  of  office  holders  acting  together  and  influencing  on  one 
side  the  policy  of  the  government  and  on  the  other  the  action 
of  parliament,  had  in  practice  taken  the  place  of  the  privy  i; 
council  as  the  organ  of  advice  and  of  the  direction  of  policy 
in  all  the  ordinary  and  almost  all  the  extraordinary  business 
of  the  state.  It  was  no  longer  generally  looked  upon  as  an 
illicit,  secret  cabal  or  junto,  dangerous  to  the  power  of  par- 
liament and  to  be  kept  under  and  if  possible  legislated  out 
of  existence.  It  was  not  yet  seen  how  responsibility  could 
be  enforced  upon  its  members  except  by  impeachment, 
nor  was  the  idea  or  consciousness  of  party  government 
any  more  developed  than  that  of  ministerial  responsibil- 
ity, but  it  may  be  said  that  the  existence  of  the  cabinet  as 
a  recognized  piece  of  government  machinery  had  now 
been  at  least  tacitly  accepted.  The  sovereign  was  stilF 
regularly  present  at  the  deliberative  meetings  of  the  cabi- 
net, and  his  will  must  have  been  on  many  occasions  a  com-  >'... 
polling  influence  in  the  decision  reached.  On  the  other 
side,  in  the  relation  of  cabinet  to  parliament,  there  was 
much  still  to  be  learned.  There  was  as  yet  no  prime  min- 
ister of  the  modern  sort,  as  recognized  head  of  the  cabinet 

io  Robertson,  Statute^  408-42&.. 


,/■ 


382  THE  MAKING  OF  THE  CABINET 

to  whom  the  other  members  must  be  subordinate,  and  who 
especially  stood  for  the  whole  before  parliament  and  the 
nation;  it  was  not  yet  understood  that  the  members  of  the 
cabinet  must  be  a  unit  on  questions  of  policy ;  the  coalition 
cabinet  was  as  normal  as  any  other  and  in  practice  more 
frequent,  and  even  when  the  members  were  all  from  the  same 
party  it  was  not  considered  necessary  that  they  should  all 
stand  together ;  a  measure  introduced  by  a  member  of  the 
cabinet,  and  having  the  support  of  the  ministry,  was  not  yet 
a  government  measure  involving  the  fate  of  the  cabinet  by 
its  success  or  failure.  As  a  consequence,  the  corporate  re- 
sponsibility of  the  cabinet  to  parliament  was  not  yet  under- 
stood, that  when  defeated  in  the  house  of  commons  the 
ministry  as  a  whole  and  the  party  should  lose  its  control  of 
government,  and  a  new  ministry  and  a  new  party  come  into 
power.  The  country  had  to  work  through  to  this  prin- 
ciple by  the  further  experience  of  a  whole  generation,  and 
this  experience  and  not  the  earlier  is  really  that  by  which 
the  way  to  an  understanding  of  cabinet  government  and 
ministerial  responsibility  was  opened,  though  it  was  another 
generation  still,  and  more,  before  the  advantages  of  the  new 
method  of  government  were  fully  appreciated. 

Bibliographical  Note. —  G.  B.  Adams,  The  Origin  of  the 
English  Const  Hut  ion,  1020.  Sir  W.  R.  Anson,  The  Law  and 
Custom  of  the  Constitution,  1907-9;  The  Cabinet  in  the  Seven- 
teenth and  Eighteenth  Centuries,  E.  II .  It.  xxix,  56,  325,  1914. 
M.  T.  Blauvelt,  The  Development  of  Cabinet  Government,  1002. 
E.  I.  Carlyle,  Clarendon  and  the  Privy  Council,  E.  II.  R.  xxvii, 
251.  E.  Jenks,  Parliamentary  E.ngland,  1903.  H.  B.  Learned, 
The  President's  Cabinet,  1912.  W.  A.  Shaw,  The  Beginnings  of 
the  National  Debt,  Owens  Coll.  Hist.  Essays,  1907.  H.  W.  V. 
Tcmperley,  Diner  and  Outer  Cabinet  and  Privy  Council,  E.  II.  R. 
xxvii,  682;  Poioers  of  the  Privy  Council  in  the  Seventeenth  Cen- 
tury, E  II.  R.  xxviii,  127.  E.  R.  Turner.  The  Development  of 
the  Cabinet,  A.  II.  R.  xviii,  751,  xix,  27;  Committees  of  Council 
and  the  Cabinet,  A.  II.  R.  xix,  772. 


CHAPTER  XVI 
THE  GROWTH  OF  THE  CABINET 

The  accession  of  George  I  marks  the  beginning  of  an  epoch 
as  formative  in  the  development  of  cabinet  government  as 
the  epoch  which  begins  with  the  accession  of  James  I  in  the 
history  of  the  general  constitution.  The  cabinet  in  form  and 
method  of  operation  was  ready  for  a  great  advance.  The 
necessary  conditions  had  been  thoroughly  prepared.  The 
mechanical  form  was  virtually  fixed.  Experience  enough 
had  been  gained  to  serve  as  a  guide  and  to  insure  that 
few  opportunities  offered  in  the  new  circumstances  of  the 
time  would  be  missed.  But  it  is  exceedingly  important  to 
keep  in  mind  the  fact  that  still,  and  for  a  long  time  to  come, 
the  progress  made  had  to  be  progress  with  no  definite  aim, 
with  no  conception,  even  by  the  most  far-sighted  states- 
men who  were  leading  the  advance,  of  the  result  towards 
which  they  were  reaching.  This  period  of  creative  progress 
with  no  perception  of  the  end  may  be  said  to  close  with  the 
dismissal  by  George  III,  in  1783,  of  the  ministry  of  Fox  and 
North,  and  the  appointment  of  the  younger  William  Pitt 
as  prime  minister,  in  the  teeth  of  a  hostile  majority  in  the 
house  of  commons.  This  date  is  too  early,  as  we  shall  see, 
for  a  full  understanding  of  the  cabinet  system,  but  it  marks 
well  enough  the  time  at  which  the  creative  process  is  at  an 
end.  The  result  then  reached  only  needs  to  be  understood  in 
all  its  bearings  for  the  completion  of  the  system. 

The  circumstance  which  introduced  an  epoch  of  peculiar 
progress,  and  made  certain  that  it  would  go  on  uninter- 
ruptedly for  fifty  years,  was  the  coming  to  the  English  throne 
of  a  foreign  dynasty,  the  house  of  Hanover.     George  I  was 

383 


384  THE  GROWTH  OF  THE  CABINET 

not  merely  a  German.  He  was  well  past  fifty  years  of  age 
when  he  became  king  of  England.  His  habits  and  interests, 
his  likes  and  dislikes,  were  firmly  fixed.  He  would  have 
found  it  very  difficult  to  adapt  himself  to  the  strange  con- 
ditions of  his  new  kingdom  even  if  he  had  earnestly  tried  to 
do  so,  and  he  had  no  wish  to  try.  The  great  things  in  life 
to  him,  apart  from  certain  personal  pleasures,  were  the 
ha'penny  intrigues  among  the  petty  states  into  which  Ger- 
many was  then  divided.  He  desired  the  crown  of  England 
for  the  increased  prestige,  military  strength,  and  money 
which  it  might  bring  him,  but  he  really  cared  more  to  gain 
a  little  territory  for  his  electorate,  or  a  better  military 
position  in  north  Germany,  than  to  defend  the  king's  pre- 
rogative in  England  or  to  check  a  constitutional  development 
which  was  destroying  the  royal  initiative.  There  is  another 
matter  which  seems  an  insignificant  accident  but  which  was 
really  a  prime  factor  in  the  result.  The  king  knew  no  Eng- 
lish. Scarcely  one  of  the  great  ministers  with  whom  he 
must  do  business  during  his  reign  knew  German.  Conversa- 
tion even  with  Walpole  had  to  be  carried  on  in  a  Latin  which 
was  not  very  fluent  on  cither  side.  Difficulties  which  George 
had  in  understanding  English  ways  and  methods,  his  lack 
of  interest  in  learning  the  ins  and  outs  of  the  constitution, 
needed  only  the  added  difficulty  of  talking  things  over  freely 
with  his  ministers  to  make  him  quite  willing  to  turn  over  to 
them  the  ordinary  running  of  government  without  inter- 
ference, and  even  the  determination  of  policy  in  man}'  cases 
where  German  politics  were  not  directly  concerned.  It  was 
the  usual  opportunity  offered  by  a  faineant  king,  who  in 
this  case  was  a  faineant  king  less  by  nature  than  by  circum- 
stances. 

George  II,  who  came  to  the  throne  in  1727,  had  more 
interest  in  England  and  a  better  knowledge  of  English  affairs 
than  his  father,  though  still  strongly  attached  to  Hanover, 
but  he  was  a  man  of  very  moderate  abilities.  The  process 
of  transferring  the  whole  control  of  government  policy  to 


THE  FIRST  TRIME  MINISTER  385 

the  cabinet  had  gone  on  very  rapidly  in  his  father's  time, 
and  had  been  carried  far.  It  would  have  required  a  decided 
effort  to  turn  the  current  back,  and  George  did  not  see  how 
to  do  it.  Sir  Robert  Walpole  was  firmly  fixed  in  power,  and 
continued  so  for  a  dozen  years  after  he  came  to  the  throne. 
Besides  this,  George  II  was  rather  easily  managed  by  his 
queen,  though  he  did  not  suspect  the  fact.  She  was  a  de- 
voted friend  of  Walpole's,  and  she  also  saw  clearly  that 
through  his  control  of  the  house  of  commons  the  easiest  way 
was  opened  of  getting  things  done  —  the  root  really  from 
which  the  cabinet  system  grew.  It  must  be  added  also  that 
George  II  showed  a  rather  surprising  sense  of  obligation 
to  respect  the  constitution,  when  he  was  convinced  that  a 
constitutional  principle  was  invoked.  Altogether,  then,  his 
long  reign  of  thirty-three  years  was  a  period  indistinguish- 
able from  his  father's,  of  hardly  less  rapid  and  of  as  unin- 
terrupted growth  of  cabinet  government  both  in  methods  of 
operation  and  in  the  understanding  of  the  system. 

But  if  the  period  was  very  favorable  to  the  creation  of 
cabinet  government  from  the  character  of  the  kings  who 
reigned,  they  did  no  more  than  furnish  opportunity.  Im- 
pulse and  direction  came  from  the  great  minister  of  the  age, 
Sir  Robert  Walpole.  The  first  in  a  long  series  of  great 
English  ministers  who  have  found  their  field  of  action  in 
the  performance  of  a  double  function,  the  leadership  or 
management  of  the  house  of  commons  and  the  exercise  or 
direction  of  the  national  executive,  Walpole  was  typical  of 
his  successors  in  the  position  which  he  created.  He  cannot 
be  called  a  brilliant  man  as  his  rivals  Bolingbroke  and  Car- 
teret can  be.  Few  of  his  successors  have  been  brilliant  men. 
His  qualities  were  rather  solid ;  his  thinking  was  clear  and 
thorough ;  his  speeches  won  votes  less  by  their  eloquence 
than  by  their  lucid  and  convincing  argument.  He  was  re- 
markable, at  a  time  when  political  science  and  political 
economy  had  hardly  begun  to  be  and  when  careful  observa- 
tion of  past  experience  was  not   common,  for  the.  number 


386  THE  GROWTH  OF  THE  CABINET 

of  different  problems  confronting  the  practical  statesman 
of  which  he  saw  the  essential  solution  as  later  times  have 
seen  it.  But  he  had  no  guiding  theory  of  government.  Ap- 
parently he  did  not  see  the  particular  problem  to  be  solved 
as  one  of  a  series  constituting  a  scientific  whole,  but 
merely  as  an  immediate  difficulty  to  be  overcome ;  he  did  not 
attack  his  problems  as  a  philosopher  but  as  a  practical 
worker ;  but  his  solutions  fit  into  the  scientific  whole.  Wal- 
pole  was  ambitious  of  power,  but  not  for  personal  gain  so 
much  as  for  the  opportunity  to  perform  the  service  which 
he  believed  he  could  best  perform.  His  determination  to 
maintain  himself  in  power,  and  his  clear  perception  of  the 
time  when  his  power  was  at  an  end,  both  had  decided  influ- 
ence in  cabinet  development. 

Walpole  has  been  called,  and  he  was,  the  first  prime  min- 
ister. His  establishment  of  this  position  was  one  of  his  chief 
contributions  to  the  progress  then  going  on,  but  we  must 
remember  again  the  unconscious  character  of  the  progress, 
and  also  that  for  nearly  two  hundred  years  there  was  no 
such  office  formally  recognized.  Contemporaries  did  per- 
ceive that  something  of  the  kind  was  taking  place,  without 
the  ability  to  reason  very  much  about  it,  and  it  was  regarded 
with  dislike  and  suspicion  as  the  early  stages  of  the  cabinet 
had  been.  The  term  of  prime  or  premier  minister  carried 
something  of  the  same  condemnation  as  junto  or  cabal. 
Walpole  himself  vigorously  denied  that  the  term  could  be 
applied  to  him  or  that  he  occupied  such  a  position.  The 
important  thing  is  that  the  stage  of  growth  in  which  the 
cabinet  stood  at  the  time  demanded  a  prime  minister  to 
control  its  policy,  to  insure  unity  of  action,  and  to  enforce 
a  common  responsibility,  and  that  the  dominating  person- 
ality of  Walpole  could  hardly  help  furnishing  the  leadership 
which  was  necessary.  No  office  of  prime  minister  was  cre- 
ated ;  it  was  some  time  before  it  was  understood  that  some 
one  member  of  the  cabinet  determined  who  the  other  mem- 
bers should  be  and  what  offices  should  be  regarded  as  belong- 


GROWTH  OF  POWER  OF  COMMONS         387 

ing  to  it,  and  was  entitled  to  the  obedience  of  his  colleagues 
or  to  their  resignations.  It  was  not  much  more  than  a 
headship  from  force  of  circumstances  that  Walpole  estab- 
lished, but  it  was  a  headship  so  clearly  implied  in  the  logic 
of  the  situation  that  once  brought  into  existence  it  was  seen 
to  be  necessary,  and  it  became  a  permanent  feature  of  the 
cabinet. 

It  is  naturally  the  progress  in  the  evolution  of  the  cabinet 
during  the  first  half  of  the  eighteenth  century  that  we  are 
inclined  to  emphasize,  but  there  was  necessarily  involved  with 
this  another  change  which  should  not  be  overlooked.  The 
process  of  advance,  at  least  from  1715  on,  was  a  double 
process.  It  comprised  not  merely  the  transfer  of  the  su- 
preme authority  in  the  immediate  formation  and  execution 
of  policy  to  the  cabinet,  but  also  the  transfer  of  the  final 
determinative  authority  in  the  state  to  the  house  of  com- 
mons. As  soon  as  the  cabinet  found  itself  able  to  fix  the 
policy  of  the  government  independently  of  the  king,  it  found 
that  its  policy  must  have  the  approval  of  the  house  of  com- 
mons or  it  could  not  carry  it  out.  In  other  words,  the 
cabinet  wins  its  position  in  the  modern  constitution,  not 
as  an  independent  institution,  but  as  the  instrument  of  par- 
liamentary supremacy.  These  two  changes  were  clearly  in- 
tertwined in  process  and  result.  Each  was  dependent  on  the 
other.  Neither  could  go  beyond  a  certain  point  unless  the 
other  advanced  with  equal  step.  What  happened  when  this 
double  result  was  fully  reached  was  that  the  compromise  of 
1660  was  now  embodied  in  the  working-constitution  of  the  state. 
The  sovereignty  of  parliament  had  found  the  institutional 
means  through  which  it  could  make  itself  actually  effective 
in  the  government  of  the  state,  and  as  a  consequence,  because 
in  truth  the  sovereignty  of  parliament  rested  upon  the  ulti- 
mate sovereignty  of  the  people,  there  was  a  decline  in  the 
practical  power  of  the  house  of  lords  as  well  as  of  the  royal 
prerogative.  King  and  lords  in  form  lost  nothing;  it  was 
of  the  nature  of  the  compromise  that  they  should  not ;  but 


388  THE  GROWTH  OF  THE  CABINET 

the  real  power  of  decision  in  every  important  matter  had 
passed  to  the  house  of  commons.  The  fact  showed  itself 
during  the  period  in  more  ways  than  one,  but  it  is  interesting 
that  Walpole  was  instinctively  aware  of  it  and,  the  first 
English  minister  of  high  rank  to  do  so,  steadily  refused 
promotion  to  the  upper  house  until  after  his  fall  from  power. 

With  the  settling  of  the  executive  power  in  the  cabinet 
and  of  the  sovereign  authority  in  the  house  of  commons, 
another  feature  of  modern  democracies  also  became  a  more 
definitely  effective  and  controlling  force  in  public  affairs, 
what  we  call  party  government ;  that  is,  the  vital  connection 
between  organized  political  party  and  the  new  executive 
and  the  new  sovereign  power.  The  determination  of  the 
policy  which  the  nation  should  follow  by  a  group  of  the 
chief  political  leaders  of  the  time,  who  would  act  together 
as  a  unit,  implied  of  necessity  two  things.  For  one  thing 
it  implied  that  they  all  of  them  held  to  certain  tommon 
fundamental  principles  of  government  which  made  it  easy 
for  them  to  unite  upon"  a  special  line  of  policy ;  and  second 
it  implied  that  a  majority  of  the  house  of  commons,  and 
perhaps  of  the  nation,  could  -be  for  the  same  reason  easily 
inclined  in  the  same  direction.  Often,  of  course,  in  history 
the  direction  of  impulse  has  been  the  reverse,  and  the  de- 
clared opinion  of  the  nation,  or  of  the  majority  of  the 
house  of  commons,  has  imposed  itself  upon  the  cabinet,  but 
the  principle  is  the  same.  Leaders  of  the  chosen  way  of 
thinking  are  always  found  who  are  able  to  form  a  cabinet 
and  carry  the  policy  into  execution.  The  party  holding 
to  other  principles  and  advocating  another  policy  must  wait 
until  it  can  obtain  a  majority  before  it  can  take  its  turn 
as  executive.  This  is  party  government,  at  least  as  we  have 
known  it  in  the  past,  and  this  is  the  period  of  our  history 
when  it  begins  its  continuous  operation,  as  forming  the 
effective  government. 

If  the  three  elements  of  this  situation,  the  cabinet  as  the 
executive,  the  house  of  commons  as  the  ultimate  sovereign, 


WHIG  SUPREMACY  389 

and  party  control,  have  been  taken  up  in  this  order,  the  fact 
must  not  imply  that  it  is  the  order  of  time.  No  one  is  first 
in  time;  no  one  is  last.  The  three  come  in  together  and 
grow  together,  as  the  necessarily  correlative  elements  of  a 
single  situation.  Also  it  must  be  understood  that,  as  will 
be  explained  later,  this  was  not  the  age  of  the  creation  of 
democracy.  It  was,  however,  the  age  in  which  the  machinery, 
which  so  far  in  its  history  democracy  has  used,  was  brought 
into  existence  as  we  still  have  it. 

At  the  moment  when  Queen  Anne  died,  the  tory  party  was 
in  possession  of  the  government,  but  the  suddenness  of  the 
queen's  death  and  the  energetic  action  of  certain  of  the  whig 
leaders  prevented  any  attempt  to  restore  the  Stuart  family. 
The  known  inclination  of  the  party,  however,  to  such  a  step 
made  it  impossible  for  the  new  king  to  trust  them  with  the 
conduct  of  affairs.  The  whigs  came  into  power  and  con- 
tinued to  hold  the  reins  of  government  for  fifty  years.  But 
the  tories  were  not  ousted  from  power  alone;  they  were 
ousted  from  public  estimation  as  well.  Some  of  their  ablest 
leaders  fled  the  country  for  fear  of  punishment,  and  for 
many  years  the  party  hardly  had  an  existence  as  an  organ- 
ized party.  It  was  also  some  years  before  a  strong  opposi- 
tion to  the  whig  cabinet  could  be  formed  in  the  house  of 
commons,  and  when  formed  it  was  made  up  and  led  in  large 
part  by  malcontent  whigs.  When  the  party  recovered  itself 
as  a  definite  tory  party,  it  was  found  to  have  advanced  mate- 
rially beyond  the  standpoint  of  1714.  It  no  longer  ques- 
tioned the  results  of  1688,  or  attempted  to  undo  them,  but 
it  regarded  itself  in  the  eighteenth  century  as  the  peculiar 
supporter  of  the  king  and  what  remained  of  his  power,  from 
which  it  passed  easily  into  its  nineteenth  century  attitude  as 
a  brake  upon  too  rapid  advance. 

In  the  whig  governments  of  this  long  period  there  were 
many  changes  of  ministers,  but  only  a  few  of  them  are  of 
interest  for  our  purpose.  In  George  I's  first  cabinet,  the 
leading  minister  was   Lord   Townshend,   and   Walpole   held 


390  THE  GROWTH  OF  THE  CABINET 

at  first  only  a  minor  office.  He  speedily,  however,  revealed 
his  qualities  and  in  hardly  more  than  a  year  came  to  be  re- 
garded as  the  strongest  member  of  the  cabinet  and  was  made 
chancellor  of  the  exchequer.  In  1717  a  split  in  the  party 
occurred,  and  Townshend  and  Walpole  retired  from  the 
cabinet.  Walpole  returned  to  office  in  17£0,  but  it  was  only 
in  1721  that  his  great  ministry  began,  which  continued  for 
twenty-one  years  and  formed  the  period  of  the  especially 
rapid  development  of  the  cabinet  system. 

Not  long  after  the  accession  of  George  I  a  change  took 
place  in  the  method  of  doing  cabinet  business,  which  in  this 
stage  of  its  growth  gave  it  a  decided  impetus.  Heretofore 
the  king  had  always  attended  the  meetings  of  the  cabinet  as 
a  permanent  member,  taking  part  in  its  discussions  and  hav- 
ing a  voice  in  its  decisions.  So  long  as  this  continued  to  be 
the  case  the  transfer  of  the  complete  responsibility  for  gov- 
ernment policy  to  the  cabinet  could  not  be  made,  because 
the  king's  opinion  must  always  be,  or  be  felt  to  be,  of  pre- 
vailing weight.  The  practice  ceased  soon  after  George  I 
came  to  the  throne,  not  from  any  theory  nor  because  it  was 
felt  to  be  desirable,  but  merely  because  the  king  was  un- 
interested and  bored  by  discussions  which  he  could  not  under- 
stand from  his  lack  of  English.  By  what  seems  a  mere  acci- 
dent a  change  was  brought  about,  essential  to  the  independ- 
ence of  the  cabinet  and  to  its  full  control  of  government, 
but  one  which  it  would  have  been  exceedingly  difficult  to  carry 
through  if  it  had  been  deliberately  attempted  with  the  con- 
scious knowledge  of  the  sovereign. 

Of  course  this  is  saying  no  more  than  is  true  of  almost 
every  step  of  cabinet  history.  Scarcely  anything  was  in- 
tended in  advance  or  deliberately  attempted.  It  is  true 
of  Walpole's  first  contribution  to  the  building  up  of  the 
cabinet  system,  the  creation  of  the  position  of  prime  min- 
ister. What  he  did  in  this  direction  began  even  before  the  be- 
ginning of  his  long  ministry,  before  he  became  prime  minister, 
not  by  his  own  choice  nor  by  the  choice  of  his  colleagues, 


MINISTERIAL  UNITY  391 

but  by  the  force  of  his  personality,  which  made  him  naturally 
the  leader.  That  is  all  that  the  premiership  was  in  the  first 
stages  of  itr  history,  though  its  history  developed  rather 
rapidly.  It  was  nothing  more  than  the  position  naturally 
created  in  such  circumstances  by  superior  qualities  of  leader- 
ship, in  the  cabinet  deliberations  on  one  side  and  in  the 
management  of  the  house  of  commons  on  the  other.  It  had 
no  connection  in  its  early  stages  with  any  particular  office. 
When  the  position  was  once  created,  however,  it  was  in- 
stinctively felt  to  be  necessary,  and  it  was  in  consequence 
easily  kept  in  existence  by  men  in  whom  these  qualities  were 
less  conspicuous,  or  who  possessed  them  only  in  part,  though 
its  necessity  was  not  formally  accepted  for  a  long  time. 

The  next  step  to  be  noticed  was  more  deliberately  taken, 
but  it  is  one  that  could  not  be  seen  to  be  needed  until  the 
cabinet  had  secured  control  of  government  policy  and  the 
premiership  was  well  in  existence.  Only  then  could  it  be 
felt  that  the  ministry  as  a  unit  must  support  the  policy  deter- 
mined upon,  and  that  in  consequence  it  owed  a  corporate 
responsibility  to  its  head.  Walpole's  most  famous  measure, 
the  one  which  shows  us  most  clearly  the  capacity  which  he 
had  beyond  other  men  of  his  time  of  thinking  through  a 
tangled  problem,  was  his  excise  bill,  a  proposal  for  tax  re- 
form made  in  1733.  The  merits  of  the  plan  do  not  concern 
us,  but  the  fact  that  an  intense  public  opposition  was  excited 
against  it  which  was  actively  supported  by  members  of  the 
ministry  and  important  office-holders  in  the  upper  house. 
To  this  Walpole  would  not  submit,  and  he  immediately  re- 
moved from  office  several  who,  he  believed,  should  have  sup- 
ported him ;  and  the  same  thing  was  done  again  a  little 
later  in  the  year,  on  the  defeat  of  the  government  in  the 
house  of  lords.  But  Walpole  felt  no  obligation  to  resign 
on  that  defeat.  He  did  make  it  clear  that  the  ministry 
should  act  together,  and  that  if  any  member  of  it  could  not 
support  the  majority  decision  he  should  resign.  Walpole 
has  been  accused  of  vindictiveness  in  his  action,  and  one  may 


392  THE  GROWTH  OF  THE  CABINET 

hesitate  to  free  him  entirely  of  the  charge,  but  the  principle 
on  which  he  acted  was  correct,  and  it  became  a  rule  of  cabinet 
business,  though  not  immediately. 

Walpole  dropped  his  excise  bill  and  did  not  attempt  to 
force  it  through  parliament  although  he  had  a  majority  in 
the  house  of  commons.  The  incident  is  the  first  one  since 
the  beginning  of  party  government  in  which  a  parliamentary 
majority  abandoned  a  measure  under  pressure  of  public 
opposition  outside  parliament.  Outside  opinion  had  not 
acquired  as  yet  regular  means  of  expressing  itself,  and  its 
methods  in  this  case  were  rough  and  noisy  but  effective. 
It  can  hardly  be  said  that  either  principle  or  method  was 
then  established  of  the  control  of  parliament  by  public 
opinion  expressed  otherwise  than  through  a  general  election, 
but  the  incident  is  to  be  reckoned  with  others  of  the  kind,  not 
infrequent  from  this  date  on,  and  with  other  cases  in  which 
action,  that  would  not  otherwise  have  been  taken,  was  forced 
upon  king,  or  parliament,  or  cabinet,  by  public  pressure. 
Pitt's  great  ministry  during  the  Seven  Years'  war  was  the 
creation  not  of  king  nor  of  parliament  but  of  public  opinion, 
and  there  certainly  was  some  justification  for  George  IPs 
reply  to  Pitt  concerning  the  execution  of  Admiral  Byng: 
"  You  have  taught  me  to  look  elsewhere  than  to  the  commons 
for  the  sense  of  my  subjects,"  as  well  as  for  Dr.  Johnson's 
judgment  that  Walpole  was  a  minister  whom  the  king  gave 
to  the  people,  while  Pitt  was  a  minister  whom  the  people  gave 
to  the  king.  These  incidents  at  the  beginning  of  popular 
control  may  be  more  significant  as  signs  of  what  the  future 
has  yet  in  store  than  as  facts  of  the  eighteenth  century. 

Walpole's  fall  from  power  in  1742  helped  to  establish  a 
principle  of  cabinet  government  of  greater  influence  in  the 
past  at  least  than  the  facts  of  popular  control.  In  1739 
when  a  violent  and  increasing  opposition  in  parliament,  sup- 
ported by  a  general  demand  outside  was  striving  to  bring  on 
a  war  with  Spain,  Walpole  yielded  to  the  king's  unwilling- 


THE  FALL  OF  WALPOLE  393 

ncss  to  accept  his  twice  tendered  resignation  and  entered 
upon  the  war  against  his  better  judgment.  He  still  had  a 
majority  in  the  house  of  commons  and  he  still  had  the 
support  of  the  king,  but  he  had  been  obliged  to  adopt  a 
policy  of  which  he  did  not  approve,  and  a  modern  prime 
minister  would  have  insisted  upon  retiring.  He  remained  in 
office  three  years  longer;  he  still  had  a  small  though  insecure 
majority  after  the  election  of  1741,  but  he  was  defeated 
on  January  28,  1742,  by  a  majority  of  one,  and  on  February 
2  by  a  majority  of  sixteen.  He  then  resigned  and  as  earl 
of  Orford  retired  to  the  upper  house,  whose  comparative 
insignificance  he  recognized.  If  any  minister  could  in  that 
period  have  carried  on  the  business  of  government  without 
the  house  of  commons,  Walpole  could  have  done  it.  But 
he  had  demonstrated  by  his  successes  as  well  as  by  his  failure 
that  it  was  impossible.  The  house  of  commons  learned  as 
well  that  it  had  in  its  hands  absolute  power  of  control  over 
ainT  ministry  by  the  simple  method  of  allowing  no  business 
to  be  done  until  an  obnoxious  minister  retired,  a  wholly  in- 
direct method  of  control  which  the  middle  ages  had  never 
imagined  and  which  was  not  possible  until  the  real  control 
of  national  business  was  in  the  hands  of  the  house.  It  was 
not  yet,  however,  entirely  conscious  that  this  was  the  best 
way  of  enforcing  ministerial  responsibility,  for  it  strove  to 
impeach  Walpole  after  his  defeat. 

These  are  the  most  striking  incidents  in  Walpole's  career 
b}r  which  the  cabinet  system  of  government  was  advanced, 
but  they  do  not  measure  all  the  progress  made  or  prepared 
for  immediate  accomplishment  during  his  time.  For  one 
thing  the  power  of  appointing  and  of  maintaining  ministers 
in  place  was  slipping  out  of  the  king's  hands.  He  could 
not  keep  Walpole  permanently  in  office  though  he  would  have 
been  glad  to  do  so.  He  could  not  determine  the  membership 
of  the  new -cabinet  as  he  would  have  liked.  In  1744  he  was 
obliged  to  allow  Carteret  to  be  dismissed   against  his  will. 


394  THE  GROWTH  OF  THE  CABINET 

He  did  by  his  bitter  personal  dislike  keep  William  Pitt  out 
of  office  for  some  time,  but  he  was  forced  to  accept  him 
in  174-6,  though  in  a  subordinate  place. 

The  case  of  1746  is  an  interesting  one  because  it  is  evidence 
not  merely  of  the  real  powerlessness  of  the  king  but  also  of 
the  complete  dependence  of  the  cabinet  on  the  support  of  the 
house  of  commons.  George  greatly  disliked  the  existing 
ministry,  and  when  a  proposal  was  submitted  to  him  to  re- 
model it,  involving  the  appointment  of  Pitt,  he  refused. 
Thereupon  the  ministry  generally  resigned,  and  the  king  asked 
Lords  Bath  and  Granville  (Carteret)  to  form  a  new  one. 
They  made  a  serious  attempt  to  do  so,  but  speedily  found 
that  those  who  could  command  a  following  in  the  house  of 
commons  would  not  take  office  under  them,  and  that  those 
who  would  accept  office  would  not  be  accepted  by  the  com- 
mons. They  were  obliged  to  give  up  the  attempt,  and  the 
king  was  obliged  to  take  back  the  old  ministry,  though  he 
succeeded  in  keeping  Pitt  out  of  the  cabinet.  This  is  the 
first  failure  to  form  a  cabinet  because  parliamentary  support 
could  not  be  gained  for  it. 

In  1757  George  II  made  another  attempt  of  the  same 
kind  against  Pitt's  ministry.  He  could  and  did  dismiss  Pitt 
from  office,  but  he  could  get  no  one -to  take  his  place,  and  the 
experiment  resulted  only  in  a  combination  between  Pitt  and 
the  duke  of  Newcastle,  who  commanded  great  strength  in 
the  house  of  commons.  No  one  -would  have  said  at  that 
time  that  the  king  had  lost  his  power  of  appointment  and 
dismissal.  Nominally  it  was  all  still  in  his  hands,  and  prac- 
tically he  still  retained  great  power  which  could  be  exercised 
upon  favorable  occasions,  and  continued  to  be  exercised  for  a 
long  time  to  come.  Earl  Granville  could  still  say  honestly 
in  a  cabinet  debate  in  1761,  as  reported  to  us,  in  opposition 
to  Pitt :  "  He  forgets  that  at  this  board  he  is  only  responsi- 
ble to  the  king."  A  modern  minister,  however,  might  say  the 
same  thing  truthfully,  referring  to  the  form  rather  than  to 
the  reality  of  responsibility,  but  he  would  be  felt  to  have 


THE  KING'S  LOSS  OF  POWER  395 

departed  more  widely  from  the  actual  facts  than  did  Earl 
Granville. 

At  the  same  time  the  practice  was  being  fixed,  though 
more  by  unnoticed  precedents  than  by  conspicuous  cases, 
that  the  king  must  not  act  without  advice  from  responsible 
ministers,  and  that  he  must  take  his  policy  from  the  cabinet ; 
that  is,  that  he  was  bound  to  follow  the  advice  given  him. 
This  was  an  almost  inevitable  result  from  ministerial  re- 
sponsibility to  parliament.  Ministers  would  necessarily 
hesitate  to  be  held  responsible  for  policy  which  was  not  their 
own,  and,  if  the  king  succeeded  in  forcing  his  policy  upon 
the  cabinet,  some  minister  or  the  whole  of  them  must  become 
responsible  for  it.  At  the  same  time  the  policy  of  the 
cabinet,  which  had  the  support  of  parliament  and  therefore, 
theoretically  at  least,  was  the  policy  of  the  nation,  must  be 
carried  out. 

Two  other  matters  belonging  to  the  general  movement 
must  be  noticed.  One  is  the  formation  of  a  recognized  and 
regular  parliamentary  "  opposition."  By  this  is  not  meant 
an  organized  faction  opposing  the  ministry  in  power.  A 
parliamentary  opposition  is  as  permanent  a  feature  of  party 
government  as  the  organization  which  is  in  responsible  power. 
It  is  the  party  out  of  office,  with  as  definite  a  programme 
of  national  policy  as  that  of  the  party  in,  a  programme 
which  it  is  trying  to  persuade  the  public  to  adopt,  and  which, 
if  it  succeeds,  it  must  assume  the  responsibility  of  carrying 
out.  Its  function  as  opposition  is  as  definite.  Its  business 
is  to  see  that  the  party  in  power  takes  no  step  which  has 
not  been  thoroughly  criticised,  to  see  «that  it  has  been  com- 
pelled to  defend  its  policy  from  every  side,  and  to  prove  its 
advisability  under  penalty  of  loss  of  power.  In  other  words, 
its  function  is  to  prevent  the  cabinet  from  becoming  too 
much  at  ease  and  careless,  and  to  keep  it  awake  to  the  dan- 
ger of  any  move  which  has  not  been  well  considered. 

The  other  point  to  be  noticed  is  the  similarity  between  the 
history  of  the  cabinet  and  that  of  the  privy  council.     The 


396  THE  GROWTH  OF  THE  CABINET 

privy  council  had  now  ceased  to  be  the  advisory  organ  of 
the  state.  That  function  had  been  entirely  taken  over  by 
the  cabinet,  but  like  the  privy  council  after  the  close  of  the 
middle  ages  the  cabinet  had  tended  to  increase  rapidly  in 
numbers.  By  tradition  certain  great  offices  must  belong 
to  it ;  by  the  increase  of  business  and  of  the  importance  of 
various  departments  others  had  a  valid  claim  to  be  admitted. 
The  natural  result  happened,  as  it  had  happened  in  the 
older  institution,  the  whole  body  was  too  large  for  real  dis- 
cussion, and  the  determination  of  policy  settled  in  a  small 
group  of  especially  able  men  or  indispensable  officers,  whose 
decisions  were  accepted  by  the  larger  body.  The  fact  was 
noticed  and  commented  on  in  the  eighteenth  century  of  the 
existence  of  an  "  outer "  cabinet  and  of  an  "  inner "  or 
"  conciliabidum."  The  inner  in  the  end  becomes  the  real 
cabinet,  only  to  undergo  again  in  the  nineteenth  century 
more  slowly  the  same  process  of  enlargement,  and  under 
stress  of  the  great  war  the  same  formation  of  an  inner 
cabinet  which  becomes  the  real  determining  body. 

The  house  of  commons  became  during  the  first  two  Hano- 
verian reigns  the  power  having  ultimate  decision  in  English 
affairs,  but  the  house  of  commons  was  not  at  any  time  during 
•the  eighteenth  century  representative  of  the  English  nation, 
as  we  now  understand  the  term  representative.  The  whig 
party,  which  was  supreme  from  -the  death  of  Anne  -until 
after  the  accession  of  George  III  in  176*0,  was  the  ancestor 
of  the  liberal  party  of  Gladstone  and  Lloyd  George  and  -was 
the  liberal  party  of  the  earlier  time,  but  it  was  distinctly  an 
aristocratic  party.  The  leaders  were  all  from  great  families, 
or  they  made  their  families  great.  It  was  something  of  a 
handicap  to  William  Pitt  at  the  beginning  of  his  career,  as 
it  was  later  to  Sir  Robert  Peel  in  the  tory  party,  that  he 
w.is  not  born  into  a  great  territorial  family.  But  such  lead- 
ership did  no  more  than  to  determine  atmosphere.  It  was 
possible  then,  as  always  in  English  history,  for  unusual  abili- 


PARLIAMENTARY  CORRUPTION  397 

ties  to  make  their  way  to  the  highest  ranks.  A  much  more 
important  fact  was  the  aristocratic  control  of  the  house  of 
commons.  No  changes  had  been  made  in  the  electoral  laws 
since  before  the  middle  of  the  fifteenth  century  and,  even  by  the 
time  of  Walpole's  administration,  the  shifting  of  population 
had  created  many  anomalies.  The  pocket  borough,  where 
the  few  remaining  electors  were  controlled  by  some  territorial 
magnate,  and  the  rotten  borough,  where  the  electors  were  so 
few  and  so  corrupt  that  money  openly  decided  the  result, 
were  determining  factors  of  parliamentary  history  in  the 
eighteenth  century.  Besides  this,  there  were  numerous  office- 
holders and  crown  pensioners  still  in  the  house  of  commons  — 
in  1742  there  were  said  to  be  200  placemen  in  the  house, 
and  usually  at  the  service  of  the  government.  In  1780  it 
was  estimated  that  a  majority  of  the  house  was  elected  by 
only  6,000  voters,  and  that  487  out  of  658  members  were 
virtually  nominated. 

These  facts  made  the  eighteenth  century  the  great  age  of 
parliamentary  corruption.  They  also  were  an  aid  to  the 
establishment  of  cabinet  government,  for  they  made  it  an 
easy  and  simple  matter  for  members  of  the  house  to  shift 
.their  allegiance  from  one  ministry  to  another.  The  English 
cabinet  system  rests  on  the  fact  that  the  members  who  have 
at  one  time  supported  the  ministry  can  and  will  at  another 
time  turn  against  it.  Since  early  in  the  nineteenth  century 
it  has  been  considered  that  the  change  takes  place  because 
some  ministerial  policy  fails  to  win  support,  or  because 
there  has  been  a  change  in  public  opinion  outside  parliament. 
In  the  eighteenth  century  the  reasons  for  a  change  were  not 
always  supposed  to  be  so  honorable.  Walpole  has  been 
accused,  it  would  seem  on  insufficient  grounds,  of  being  the 
first  minister  to  employ  systematic  corruption.  The  duke 
of  Newcastle  certainly  was  deeply  interested  in  the  manipu- 
lation of  votes  in  the  house  and  reduced  it  to  an  art,  and 
the  experience  gained  in  the  first  half  of  the  century  in  the 


398  THE  GROWTH  OF  THE  CABINET 

control  both  of  elections  and  of  votes  in  the  house  came 
to  the  advantage  of  George  III  in  his  efforts  to  restore  the 
royal  authority. 

In  this  age,  apart  from  the  development  of  the  cabinet 
system,  there  is  little  of  importance  to  record.  In  1716  the 
triennial  act  of  1694?  was  repealed,  from  fear  of  what  might 
result  from  a  tory  or  Jacobite  victory  in  a  general  election, 
and  the  life  of  a  parliament  was  fixed  at  seven  years.  The 
septennial  act  continued  in  force  until  the  passage  of  the 
parliament  act  of  1911. *  An  attempt  of  a  somewhat 
similar  kind  in  1719,  to  close  the  house  of  lords  and  per- 
petuate the  whig  majority  in  it  by  limiting  the  king's  power 
to  create  new  peers,  did  not  succeed.2  This  is  the  age  of  the 
rise  of  the  chancellor  of  the  exchequer  as  the  chief  financial 
minister  of  the  state.  The  office  of  lord  high  treasurer  was 
not  filled  after  the  death  of  Anne.  The  treasury  was  put 
into  commission  with  the  first  lord  of  the  treasury  at  the 
head.  By  degrees,  however,  this  office  came  to  be  considered 
to  be'  the  one  naturally  held  by  the  prime  minister  and  its 
duties  to  be  political  rather  than  administrative,  that  is,  its 
treasury  duties  became  nominal.  By  the  same  degrees  the 
chancellor  of  the  exchequer,  in  the  middle  ages  a  subordinate 
officer,  came  to  be  considered  the  working  officer  of  the 
treasury,  to  whom  it  fell  to  defend  the  ministry's  financial 
policy  and  so  to  have  a  peculiar  responsibility  for  its  forma- 
tion and  carrying  out.  For  this  reason  it  naturally  came 
to  be  felt  that  he  must  always  be  a  member  of  the  house  of 
commons,  though  no  legal  rule  was  made  to  that  effect. 

The  progress  which  had  been  made  during  the  first  two 
Hanoverian  reigns,  in  establishing  the  cabinet  s}'stem  of  gov- 
ernment in  place  of  the  king's  initiative,  and  in  beginning  to 
recognize  in  experience  the  incidental  results  of  the  system, 
like  the  premiership  and  cabinet  solidarity,  was  very  rapid,  if 
we  consider  the  stage  of  development  in  which  the  institution 

i  A.  and  S.,  487-488;   Robertson,  Statutes,  117-119. 
2  A.  and  S.,  488-489;  Robertson,  Statutes,  208-209. 


REACTION  399 

then  stood.  Forgetting  for  the  moment  that  neither  the 
institution  as  a  whole,  nor  the  bearing  upon  it  of  its  incidental 
features,  was  then  understood,  one  is  tempted  to  anticipate 
the  complete  appearance  of  the  modern  system  in  the  next 
decade.  As  a  matter  of  fact  the  progress  had  been  too 
rapid.  It  was  not  merely  not  understood ;  it  had  not  made 
itself  habitual ;  it  had  not  become  expected,  or  conventional, 
or  in  anyone's  thought  a  part  of  the  constitution.  Boling- 
broke  saw  clearly  enough  the  ultimate  foundation  in  the  will 
of  the"  people  upon  which  any  government  must  rest  after 
the  revolution  of  1688.  Burke  was  startled  by  George  Ill's 
success  into  a  course  of  reasoning,  about  what  government 
should  be',  which  comprehended  more  of  the  fundamental 
principles  of  the  new  system,  but  no  one  saw  them  clearly 
as  yet,  as  having  their  necessary  result  in  the  various  feat- 
ures we  here  noted  of  the  new  institution  which  was  forming. 
It  was  the  fact  also  that  the  new  system  had  never  been  sub- 
jected to  the  test  of  the  determined  and  intelligent  opposition 
of  the  royal  power.  It  had  found  its  opportunity  to  grow  so 
rapidly  in  the  practical  abeyance  of  the  monarchy.  A 
reaction  was  not  unnatural  under  all  the  conditions,  and  a 
reaction  is  what  characterizes  the  next  twenty-five  years. 

George  III,  who  came  to  the  throne  in  1760,  had  none  of 
the  talents  of  the  statesman ;  in  fact  his  abilities  were 
mediocre,  and  he  had  been  gifted  to  the  full  with  the  allowance 
of  obstinacy  which  usually  goes  with  a  narrow  intellect. 
But  he  had  been  carefully  educated  for  one  thing:  to  "  be  a 
king,"  as  his  mother  expressed  it,  to  recover  the  royal  power. 
He  *was  industrious  and  painstaking,  sincerely  desirous  of 
advancing  the  interests  and  power  of  his  country,  and  very 
much  in  earnest  to  perform  well  the  business  of  a  king 
as  he  understood  it.  His  text  books  in  political  science 
had  been  Bolingbroke's  high  tory  argument,  The  Idea  of  a 
Patriot  King,  and  Blackstone's  account,  in  his  Commentaries 
on  the  Laws  of  England,  then  still  in  'manuscript,  of  the  place 
of  the  king  in  the  constitution.     His  was  the  account  of  a 


400  THE  GROWTH  OF  THE  CABINET 

lawyer  who  naturally  stated  the  law  as  it  stood  and  disre- 
garded the  interpretation  now  conventional.  However  ill- 
fitted  George's  mind  may  have  been  to  guide  the  policy  of  a 
great  state  in  perilous  times,  he  saw  clearly  enough  what 
the  function  of  the  king  was  in  the  government  which  he 
was  to  strive  to  recover,  and  in  the  practical  situation  which 
faced  him  he  was  able  to  take  the  steps  upon  which  first 
successes  depended. 

It  is  necessary  at  the  beginning  to  make  clear  just  how 
far  the  plans  of  the  king  went,  as  we  know  them  historically, 
and  what  they  did  not  include.  He  never  attacked  the  sover- 
eignty and  supremacy  of  parliament.  That  is,  his  plans, 
so  far  at  least  as  he  had  time  to  develop  them,  never  contem- 
plated the  sort  of  royal  power  which  was  aimed  at  by  Charles 
I  and  James  II,  an  absolute  and  arbitrary  royal  power,  lim- 
ited only  by  the  responsibility  of  the  king  to  God.  The  pri- 
mary results  of  the  revolution  of  1688,  he  did  not  attempt  to 
change.  Rather  what  he  strove  to  reestablish  was  the  royal 
control  of  government  policy  which  William  III  had  enjoyed. 
The  usurpation,  as  he  could  not  fail  to  regard  it,  of  initiative 
and  direction  in  deciding  what  the  state  should  do,  the  trans- 
fer of  the  responsibility  of  the  officers  of  government  from 
the  sovereign  to  the  prime  minister,  together  with  the  man- 
agement of  the  house  of  commons,  these  secondary  results 
of  the  revolution  he  was  resolved  to  undo.  What  might  have 
been  the  ultimate  outcome  of  his  attempt,  if  it  had  been  suc- 
cessful, it  does  not  belong  to  the  historian  to  say.  It  is  not 
easy,  however,  to  see  just  how  constitutional  liberty  could 
have  survived,  for  apparently  the  immediate  result  would 
have  been  to  do  away  with  ministerial  responsibility  and  to 
make  the  king  responsible,  or  at  best  to  set  up  once  more  the 
clumsy  medieval  system  of  direct  responsibility  through  im- 
peachment. 

We  must  remember  also  in  forming  our  judgment  upon 
George  Ill's  plan,  that  no  one  at  that  time  could  think  of  it 
as   an   unconstitutional   attempt.     It   would   be   unconstitu- 


PLAN  OF  GEORGE  III  401 

tional  in  a  king  of  today.  It  has  been  called  unconstitu- 
tional in  George  by  a  modern  scholar,  but  that  is  carrying 
a  judgment  from  present  day  conditions  back  into  a  time 
when  the}'  did  not  exist.  No  one  of  that  day  could  deny 
that  the  king  had  a  perfectly  legal  and  constitutional  right 
to  do  all  that  he  did  in  regard  to  his  ministers  between  1760 
and  1782.  We  can  see  clearly  that  the  attack  which  he 
made  upon  the  cabinet  system  of  government  was  deadly,  and 
that  it  would  have  destro3red  it,  if  it  had  succeeded.  But 
the  cabinet  system  was  certainly  not  legally  recognized  at 
that  time,  nor  was  it  so  firmly  established,  so  habitual  in 
practice,  or  so  understood  in  common  thought,  as  to  be 
fixed  in  the  conventional  constitution.  George  III  was  un- 
doubtedly struggling  against  the  whole  current  of  English 
history,  which  had  steadily  led  on  to  ministerial  responsi- 
bility of  the  modern  form ;  his  final  success  would  have  meant 
long  delay  in  arriving  at  the  best  machinery  of  national 
self-government ;  but  he  cannot  be  accused  of  violating  the 
constitution  as  it  then  existed. 

The  situation  at  the  moment  of  his  accession  was  not 
favorable  to  the  king's  plan.  England  was  in  the  midst  of 
the  great  Seven  Years'  war,  the  most  desperate  phase  down 
to  that  time  of  its  conflict  with  France,  the  war  which  estab- 
lished the  British  empire  and  British  supremacy  on  the  sea. 
The  tide  was  flowing  strongly  in  England's  favor,  but  not 
yet  so  decisively  that  the  natural  gains  from  her  victories 
could  be  securely  gathered.  The  great  war  minister,  William 
Pitt,  whose  genius  and  inspiration  had  turned  defeat  into 
victory,  was  in  control  of  England's  military  and  foreign 
policy,  and  so  great  was  his  popularity  among  the  people 
that  it  would  not  have  been  easy  to  recover  control  from 
him.  This  the  king  did  not  attempt  to  do,  and  he  does  not 
seem  to  have  had  any  wish  to  get  rid  of  Pitt  until  peace 
should  have  been  made.  There  were  two  things,  however, 
which  he  could  and  did  set  about  immediately.  One  was  to 
take  into  his  own  hand  the  determination  of  who  should  be 


402  THE  GROWTH  OF  THE  CABINET 

his  ministers,  with  no  recognition  of  the  prime  minister's 
right,  and  the  other  was  to  recover  the  distribution  of  gov- 
ernment patronage  and  rewards  from  ministerial  control. 

On  the  day  on  which  George  II  died,  his  successor  offered 
to  make  his  favorite  attendant,  the  carl  of  Bute  a  secretary 
of  state  in  the  cabinet.  Bute  possessed  no  higher  political 
abilities  than  the  king,  but  he  sympathized  with  his  master's 
designs  and  that  quality  was  of  more  value  just  then  than 
genius.  Bute  declined  to  take  high  office  so  suddenly,  but  he 
was  immediately  sworn  a  member  of  the  privy  council  and 
given  a  seat  in  the  cabinet,  without  considering  either  Pitt 
or  Newcastle,  who  was  the  nominal  head  of  the  ministry. 
George  also  composed  without  advice  his  first  address  to  the 
council,  and  Pitt  had  some  difficulty  in  getting  changed  cer- 
tain words  which  the  king  had  used  describing  the  war  as 
"  bloody  and  expensive."  These  facts  were  an  unmistakable 
declaration  of  policy.  They  could  mean  only  that  hence- 
forth the  king  proposed  to  say  himself  who  should  be  his 
ministerial  advisers,  and  that  he  intended  to  take  an  active 
part  in  the  determination  of  policy.  In  both  these  matters 
he  was  within  his  legal  rights,  and  in  both  he  was  successful, 
for  twenty  years  limited  only  by  adventitious  circumstances 
not  by  law  or  convention,  and  for  the  remainder  of  his  reign 
to  a  greater  extent  than  any  other  sovereign  from  the  ac- 
cession of  his  great-grandfather  to  the  present  day. 

In  the  second  of  the  matters  mentioned,  the  determination 
of  policy,  George  did  not  insist  upon  attending  cabinet 
meetings.  He  made  known  his  opinions  through  special 
friends  who  in  a  way  represented  him  in  the  cabinet,  or 
through  others  upon  whom  he  impressed  his  views,  and  some- 
times by  abrupt  and  even  discourteous  statements  directly  to 
those  cabinet  leaders  who  were  not  favorable  to  his  wishes. 
He  never  was  at  a  loss  to  make  his  desires  known.  In  the 
matter  of  choosing  his  own  ministers  he  had  greater  diffi- 
culties, but  not  because  the  house  of  commons  insisted  upon 
the  ministers  of  its  choice  and  refused  to  do  business  with 


TORY  RECOVERY  403 

any  other.  Till  the  end  of  the  first  period  he  had  no  trouble 
of  that  kind.  His  difficulties  were  all  due  to  the  refusal 
of  the  men  selected  to  accept  office,  and  these  refusals  were 
not  due,  in  the  great  majority  of  cases,  to  constitutional 
reasons  but  to  personal  likes  and  dislikes,  or  sometimes  to 
the  demands  of  factional  politics.  Four  times  he  failed  to 
induce  Pitt  to  take  office  between  his  resignation  in  1761 
and  Pitt's  consent  at  last  to  for-m  a  ministry  in  1766,  and 
several  times  he  found  himself  compelled  to  retain  ministers 
in  power,  and  even  cabinets,  when  he  would  have  been  glad 
to  dismiss  them,  because  others  would  not  serve. 

The  first  -ten  years  of  the  reign  saw  a  rather  rapid  suc- 
cession of  cabinets,  unstable  and  disunited,  largely  because 
of  royal  interference ;  cabinet  solidarity  was  at  an  end. 
There  are  reckoned  seven  ministries  in  this  time,  including 
Newcastle's  in  power  at  the  accession  and  Lord  North's 
formed  in  January,  1770.  As  one  move  in  his  attempt  to 
recover  power,  George  was  determined  to  break  up  the  long 
whig  domination,  which  had  lasted  since  the  death  of  Anne. 
The  move  was  made  easy  partly  because  the  whig  party,  as 
usually  happens  in  such  cases,  had  split  into  factions  which 
could  with  little  trouble  be  played  one  against  the  other,  and 
partly  because  the  loyalty  and  patriotism  of  the  tory  party, 
after  so  long  a  time  and  so  many  changes,  was  no  longer 
popularly  suspected.  Tories  began  to  appear  in  numbers 
at  the  court  and  to  be  put  by  the  king  into  office.  In  the 
existing  cabinet  Pitt  and  Newcastle  were  not  in  close  accord, 
and,  though  it  seems  certain  that  the  king  had  no  intention 
to  force  Pitt  out  till  after  peace  had  been  made,  he  did 
desire  a  speedy  peace  and  a  different  cabinet.  At  the  end 
of  five  months  Bute  was  a  secretary  of  state;  in  seven  more 
Pitt  resigned  because  the  cabinet  refused  to  adopt  his  policy 
of  war  with  Spain;  and  a  year  and  a  half  after  the  accession 
Bute  was  prime  minister.  The  ministries  which  followed  at 
short  intervals  to  the  appointment  of  Lord  North  present 
no  points  of  interest  which  it  is  important  for  us  to  notice. 


404  THE  GROWTH  OF  THE  CABINET 

They  are   remembered  in  general  history   chiefly   for  their 
share  in  bringing  on  the  American  revolution. 

If  George  III  could  succeed  without  constitutional  diffi- 
culties in  obtaining  ministers  who  would  be  subservient  to 
his  policy  or  whom  he  could  circumvent,  he  could  not  get  rid 
of  the  supremacy  of  parliament.  Yet  if  the  king  was  to 
decide  the  policy  of  the  state,  parliament  must  take  its  policy 
from  the  king  and  not  from  the  nation.  The  king  must  be 
sure  that  parliament  would  support  the  view  upon  which  he 
had  fixed.  The  method  of  securing  the  necessary  control 
of  parliament  was  ready  at  hand  when  George  came  to  the 
throne,  organized  in  systematic  form  largely  by  Newcastle 
in  the  last  reign,  and  the  king  began  immediately  to  put  it 
into  operation  at  the  expense  of  the  minister.  It  consisted 
in  the  distribution  of  the  royal  patronage,  offices,  employ- 
ments, and  contracts,  of  various  rewards,  titles,  and  pensions 
which  the  king  had  to  bestow,  sometimes  perhaps  in  the 
direct  use  of  secret  service  money,  all  to  influence  elections 
or  more  directly  to  influence  members  of  parliament  them- 
selves. Not  infrequently  punishments  were  used  as  well  as 
rewards  and  men  dismissed  from  office,  in  some  instances  even 
obscure  and  old  men  who  had  nothing  to  do  with  opposition 
but  were  dependents  or  appointees  of  those  who  had.  New- 
castle, who  had  charge  of  these  matters  in  the  cabinet,  which 
was  in  office  at  the  death  of  George  II,  and  who  delighted 
in  the  business  though  himself  honest,  was  astonished  at  the 
suddenness  with  which  the  new  king  resumed  this  function, 
but  he  had  no  ground  on  which  to  object.  The  king  was 
again  clearly  within  his  rights.  The  period  which  followed, 
the  first  twenty  years  of  the  reign,  is  the  climax  of  parlia- 
mentary and  official  corruption  in  English  history.  The 
system,  as  a  system,  falls  with  the  failure  of  the  king's 
general  attempt.  Corruption  in  parliamentary  elections, 
engineered  by  private  persons  in  their  own  interest,  continued 
for  a  long  time,  but  there  was  no  further  attempt  to  secure 


PERIOD  OF  THE  KING'S  RULE  405 

parliamentary  majorities  by  the  systematic  use  of  official 
corruption  on  a  large  scale. 

George  Ill's  system  of  government  reached  its  highest 
success  and  brought  on  its  own  failure  in  the  ministry  of 
twelve  years  of  Lord  North,  which  began  in  January,  1770.3 
Lord  North  was  but  little  if  any  superior  in  political  abilities 
to  the  king  or  to  Bute,  but  the  royal  regime  was  one  in 
which  men  of  first  ability  could  find  little  opportunity  and 
in  which  ability  was  not  demanded.  The  king  was  now  in- 
disputably his  own  prime  minister,  and  what  he  desired  was 
a  "  chief  responsible  agent  of  '  the  king's  business  '  in  parlia- 
ment." That  North  was  willing  to  be,  not  from  ambition 
to  hold  office  but  from  honest  conviction  that  this  was  the 
king's  constitutional  right.  He  was  a  good  debater  and 
leader  of  the  house  of  commons,  but  George's  hold  upon  a 
majority  was  so  secure  that  it  could  not  easily  be  challenged. 
There  were  192  members  holding  office  under  the  govern- 
ment. Besides  this  during  more  than  half  the  period  the 
opposition  was  so  divided  and  out  of  hand  that  it  was  not 
formidable.  The  important  matter  is  that  during  this 
period  George  obtained  what  he  had  striven  for.  Cabinet, 
parliament,  and  government  policy  were  under  his  control. 
Lord  North  recognized  the  fact  fully  and  acted  upon  it 
loyally.  Fairly  early  he  became  convinced  that  the  policy 
followed  in  America  was  likely  to  fail,  and  he  repeatedly 
urged  his  resignation  upon  the  king,  but  yielded  always  to 
the  king's  will.  He  wrote  to  George  in  1779  that  he  "  held 
in  his  heart  and  had  held  for  three  years  past  "  the  con- 
viction that  to  carry  on  the  war  in  America  "  must  end  in 
ruin  to  his  Majesty  and  the  country."  Yet  he  remained  in 
office  until  1782. 

It  does  not  belong  to  us  to  follow  the  events  of  the  Ameri- 
can war.  It  is  to  be  noticed  rather  that  what  was  at  stake 
in  it  for  England,  beyond  colonies  and  empire,  was  the  con- 
a  Cheyney,  Readings,  633-637. 


406  THE  GROWTH  OF  THE  CABINET 

tinuance  of  this  personal  royal  dictation,  under  the  forms  of 
the  constitution  established  in  1688,  or  a  return  to  the  sys- 
tem of  cabinet  government  taking  its  direction  from  the 
house  of  commons  and  responsible  to  it  and  to  public  opinion 
—  the  system  which  had  developed  so  steadily  during  the 
first  half  of  the  century.  It  was  no  doubt  the  perception 
by  the  king  that  this  question  was  involved  that  made  him 
so  reluctant  to  bring  the  war  to  an  end.  The  fact  was 
recognized  clearly  enough  at  the  time  by  the  opposition 
party,  and  is  the  explanation  of  their  vigorous  support  of 
the  American  cause.  The  colonies  were  fighting  the  battle 
of  Englishmen  at  home.  The  fact  has  also  been  abundantly 
recognized  in  later  times,  and  there  can  be  no  doubt  but 
that  this  interpretation  was  correct. 

As  disasters  fell  upon  the  British  cause,  and  as  all  her 
old  colonial  rivals,  France,  Spain,  and  Holland,  appeared  in 
the  field  against  her,  the  opposition  gathered  strength,  be- 
came more  frank  in  pushing  the  constitutional  point,  and 
began  to  be  supported  by  increasing  public  opinion.  In 
1780  John  Dunning  obtained  a  majority  in  the  house  of 
commons  for  a  resolution  affirming  "  that  the  influence  of 
the  crown  has  increased,  is  increasing,  and  ought  to  be 
diminished."1 4  It  required,  however,  two  years  more  of 
struggle,  with  many  motions  equivalent  to  a  vote  of  want 
of  confidence  carried  against  the  ministry,  before  the  king 
would  yield,  and  at  the  moment  only  because  Lord  North 
peremptorily  resigned  on  March  20,  1782. 

George  was  obliged  to  accept,  under  the  whig  Marquis 
of  Rockingham,  a  ministry  which  he  detested,  as  well  as 
the  cabinet  of  Shelburne  later  in  the  year,  and  the  coalition 
ministry  of  Fox  and  North  in  1783;  and  he  was  obliged 
to  accept  them  now  not  because,  as  in  the  early  part  of 
his  reign,  personal  and  factional  conditions  rendered  any 
other  course  impossible,  but  because  public  opinion  and  the 
house  of  commons  was  in  control.  A  long  step  had  been 
«  A.  and  S.,  494. 


RISE  OF  THE  YOUNGER  PITT  407 

taken  back  towards  cabinet  government.  The  king,  however, 
had  no  intention  of  abandoning  his  ideals  without  a  further 
struggle,  and  it  was  really  due  to  the  tact  and  political  skill 
of  the  younger  William  Pitt  that  ministerial  responsibility 
was  reestablished. 

Pitt  early  began  to  display  the  unusual  gifts  which  won 
him  his  place  in  English  history  and  was  carefully  trained  by 
his  father  for  public  life.  From  the  moment  of  his  entry  into 
the  house  of  commons,  then  barely  twenty-one  years  of  age, 
he  attracted  attention  to  himself  as  likely  to  be  equal  to  the 
highest  demands.  The  king  himself  soon  concluded  that  he 
was  the  man  who  could  rescue  him  from  his  embarrassments. 
In  the  cabinet  of  Shelburne  he  was  given  the  difficult  and 
responsible  place  of  chancellor  of  the  exchequer,. but  he  would 
not  enter  the  coalition  ministry  of  Fox  and  North.  Before 
long  the  king  in  his  anxiety  to  be  rid  of  this  ministry  began 
to  urge  him  to  form  a  cabinet  of  his  own,  but  Pitt,  with 
that  rare  instinct  for  public  opinion  which  distinguished  him, 
refused  to  accept  until  the  time  had  come,  as  he  believed, 
when  he  could  win  the  support  of  a  secure  majority.  He 
had  no  mind  to  become  another  Lord  North,  sustained  by 
the  king  whatever  might  be  the  feeling  of  the  nation. 

He  judged  the  moment  favorable  in  December,  1783. 
Fox's  bill  for  the  regulation  of  the  East  India  Company  had 
been  carried  by  a  large  majority  in  the  commons,  in  spite 
of  the  known  dislike  of  the  king  for  the  measure.  To  defeat 
it  in  the  lords  George  took  an  extraordinary  step,  uncon- 
stitutional even  at  that  time.  He  gave  to  Earl  Temple  a 
card  on  which  he  had  written  these  words:  "His  Majesty 
allows  Earl  Temple  to  say  that  whoever  voted  for  the  India 
Bill  was  not  only  not  his  friend,  but  would  be  considered  by 
him  as  an  enemy;  and  if  these  words  were  not  strong  enough, 
Earl  Temple  might  use  whatever  words  he  might  deem 
stronger  and  more  to  the  purpose."  Earlier  kings  had  cer- 
tainly done  as  much,  even  William  III,  though  in  a  less  formal 
way,  but  the  house  of  commons  immediately  resolved,  by  a 


408  THE  GROWTH  OF  THE  CABINET 

vote  of  almost  two  to  one,  "  that  it  is  now  necessary  to  de- 
clare, that  to  report  any  opinion,  or  pretended  opinion,  of 
his  Majesty,  upon  any  bill,  or  other  proceeding,  depending 
in  either  House  of  Parliament,  with  a  view  to  influence  the 
votes  of  the  members,  is  a  high  crime  and  misdemeanor, 
derogatory  to  the  honor  of  the  crown,  a  breach  of  the  funda- 
mental privileges  of  parliament,  and  subversive  of  the  con- 
stitution." A  day  or  two  later  it  was  resolved,  in  view  of  the 
necessity  of  reforms  in  the  East  Indies,  "  that  this  House  will 
consider  as  an  enemy  to  his  country,  any  person  who  shall 
presume  to  advise  his  Majesty  to  prevent,  or  in  any  manner 
interrupt,  the  discharge  of  this  important  duty."  In  spite 
of  the  attitude  of  the  house  of  commons,  the  king  succeeded. 
The  lords  rejected  the  bill,  and  the  next  day  he  dismissed 
the  ministry  of  Fox  and  North. 

Pitt  now  accepted  the  duty  of  forming  a  cabinet.  By 
doing  so  he  made  himself  responsible,  according  to  modern 
ideas,  for  all  the  king  had  done,  but  it  must  be  remembered 
that  the  clarity  of  our  ideas  about  cabinet  government  is 
due  in  considerable  part  to  the  events  of  this  crisis.  Pitt 
won  his  victory,  but  he  made  another  like  it  impossible,  for 
the  dramatic  struggle  fixed  firmly  in  public  consciousness 
the  due  relation  of  prime  ministers  to  king  and  commons. 
Pitt  was  then  some  months  short  of  his  twenty-fifth  birthday, 
and  his  effort  to  form  a  cabinet  was  at  first  greeted  with 
ridicule.  It  was  "  a  kingdom  trusted  to  a  school-boy's 
care  " ;  it  was  "  a  boyish  prank  " ;  the  cabinet  was  "  a  set 
of  children  playing  at  ministers  and  must  be  sent  back  to 
school  " ;  it  was  "  a  mince  pie  administration  "  over  with 
Christmas.  But  it  lasted  seventeen  years.  Pitt  had  judged 
the  situation  correctly.  He  was  the  only  cabinet  minister 
in  the  commons.  He  had  the  support  of  only  one  good  de- 
bater. Majorities  against  him  were  large  and  constant. 
But  the  house  of  commons  did  not  fairly  represent  outside 
opinion  even  at  the  start.  Pitt,  knowing  in  which  direction 
the  drift  was  setting,  steadily  held  his  ground  and  let  the 


PITT'S  MINISTRY  409 

adverse  votes  dwindle,  until  on  March  8  the  majority  against 
him  was  only  one.  Then  he  dissolved  parliament,  and  in 
the  general  election  following  obtained  a  strong  majority. 
Even  under  the  unreformed  parliamentary  system  of  pocket 
and  rotten  boroughs,  of  corrupt  elections  and  unrepresenta- 
tive distribution  of  seats,  the  nation  had  declared  its  will 
with  overwhelming  force  in  favor  of  the  new  ministry. 

Bibliographical  Note. —  N.  A.  Brisco,  The  Economic  Policy 
of  Robert  Walpole,  1907.  J.  Morley,  Walpole,  1889.  E.  Por- 
ritt,  The  Unreformed  House  of  Commons,  2  vols.,  1903.  T.  W. 
Riker,  Henry  Fox  First  Lord  Holland,  1911.  Sir  G.  O.  Treve- 
lyan,  The  Early  History  of  Charles  James  Fox,  1880.  E.  R. 
Turner,  The  Cabinet  in  the  Eighteenth  Century,  E.  H.  R.  xxxii, 
192,  1917.  D.  A.  Winstanley,  Personal  and  Party  Government, 
1910;  Lord  Chatham  and  the  Whig  Opposition,  1912. 


CHAPTER  XVII 
THE  RISE  OF  DEMOCRACY 

Pitt  took  office  as  a  tory,  but  he  was  not  a  tory  of  the 
type  of  Bolingbroke  or  even  of  the  tories  of  1760.  That 
party  now  entered  upon  a  long  period  of  opportunity  to 
guide  the  state,  almost  as  long  as  that  enjoyed  by  the  whig 
party  in  the  eighteenth  century,  but  its  record  of  achieve- 
ment, apart  from  carrying  the  country  successfully  through 
the  great  struggle  with  Napoleon,  is  hardly  equal  to  its 
rival's  in  the  earlier  period.  The  generation  following  1783 
was  not  favorable  to  constitutional  growth.  For  a  third 
of  a  century  there  is  no  sustained  forward  movement  to  be 
studied,  like  the  formation  of  the  cabinet  system,  but  only 
unconnected  improvements  and  the  preparation  for  some- 
thing better. 

Pitt  was  a  tory,  but  he  was  a  tory  of  the  future  rather 
than  of  the  past.  As  the  tories  of  1760  had  without  quali- 
fication accepted  the  results  of  the  revolution  of  1688,  so  now 
Pitt,  and  the  party  which  he  may  be  said  to  have  recreated, 
accepted  as  final  the  whig  work  of  cabinet  making  and  the 
position  into  which  it  had  brought  the  king.  We  shall  see  in 
several  important  occurrences  that  George  III  never  recog- 
nized the  fact  that  he  had  been  reduced  to  a  merely  nominal 
power  in  the  government,  and  that  he  could  occasionally  still 
make  his  power  something  more  than  nominal,  but  these  are 
all  isolated  cases  in  which  peculiar  circumstances  aroused 
the  intense  prejudices  of  the  king,  and  the  minister  preferred 
not  to  insist.  In  the  steady  every-day  working  of  the  govern- 
ment from  now  on,  the  prime  minister  and  his  cabinet  were 

the  real  executive.      They  had   succeeded  fully  to  the  posi- 

410 


THE  CABINET  NOT  UNDERSTOOD  411 

tion  which  the  medieval  king  had  held  in  shaping  and  carry- 
ing out  the  policy  of  the  state,  only  they  did  everything  un- 
der their  responsibility  to  parliament.  In  other  words,  we 
may  date  from  the  formation  of  Pitt's  ministry,  at  the  end 
of  1783,  the  full  establishment  of  the  compromise  of  1660: 
a  king  in  the  nominal  possession  of  almost  all  power,  a  cab- 
inet in  the  real  exercise  of  the  king's  powers,  and  a  parliament 
with  the  power  of  final  decision  in  every  question,  because  it 
was  the  voice  of  the  people  in  whom  the  ultimate  sovereignty 
resided.  The  cabinet  as  the  instrument  by  means  of  which 
parliament  was  to  make  real  in  practical  government  the 
sovereignty  of  the  people  was  at  last  in  existence. 

But  it  must  not  be  supposed  that  there  was  as  yet  any 
general  understanding  of  cabinet  government  including  the 
principle  of  ministerial  responsibility.  Pitt's  struggle  to 
maintain  himself  against  a  hostile  House  of  Commons  had 
great  influence  in  bringing  about  such  an  understanding, 
but  it  was  still  far  from  complete  and  was  only  slowly  per- 
fected through  another  twenty-five  years.  Two  incidents 
between  1784  and  the  close  of  the  century  show  how  incom- 
plete the  understanding  still  was.  Three  years  after  Pitt's 
triumph  the  Constitution  of  the  United  States  was  framed  by 
an  assembly  of  the  most  experienced  public  men  and  students 
of  politics  in  America,  who  considered  with  care  the  question 
of  setting  up  a  government  to  operate  in  the  best  way.  One 
great  problem  before  them,  set  by  the  situation  of  the  time, 
was  to  secure  a  really  efficient  executive  while  leaving  ulti- 
mate authority  in  the  legislature  as  representing  the  people, 
exactly  the  problem  which  ministerial  responsibility  solves. 
In  their  constitution,  however,  not  merely  did  they  entirely 
separate  the  executive  and  legislative  departments,  then  be- 
coming closely  united  in  England,  but  they  gave  little  atten- 
tion to  the  cabinet,  and  they  seem  to  have  had  no  idea  what- 
ever of  ministerial  responsibility. 

If  we  may  judge  by  the  powers  conferred  upon  the  presi- 
dent in  the  Constitution  and  the  fact  that  the  cabinet  is  not 


412  THE  RISE  OF  DEMOCRACY 

mentioned,  merely  referred  to  in  passing  in  the  phrase  "  the 
principal  officer  in  each  of  the  executive  departments,"  their 
idea  of  the  head  of  the  state  and  his  relation  to  his  cabinet 
seems  to  have  been  that  which  George  III  had  made  familiar 
to  them  during  the  ministry  of  Lord  North ;  I  do  not  mean 
that  they  consciously  thought  about  it  in  that  way,  but  that 
this  is  the  idea  which  they  would  instinctively  have.  It  is 
altogether  probable  that  they  thought  that  in  this  respect 
they  were  following  the  English  model,  as  beyond  question 
they  did  when  the}'  adopted  impeachment,  and  certainly, 
had  there  existed  in  England  any  such  definite  idea  of  min- 
isterial responsibility  as  fifty  years  later,  there  would  have 
been  some  discussion  of  it  in  the  convention.  The  other 
incident  is  even  more  indicative  of  English  understanding. 
In  1791  parliament  under  the  leadership  of  Pitt's  minis- 
try framed  a  new  government  for  Canada.  The  debate 
on  the  bill  shows  conclusively  that  the  desire  was  to  give 
to  Canada  the  same  kind  of  government  which  England 
had,  and  there  can  be  no  question  but  that  this  was  honestly 
intended.  And  3'et  no  responsible  ministry  was  granted,  nor 
even  proposed,  and  the  foundation  was  laid  for  the  later 
Canadian  rebellion  which  opened  a  new  era  in  British  colonial 
government.  Neither  Blackstone  in  his  Commentaries  nor 
De  Lolme  in  his  account  of  the  English  government  for 
French  readers,  both  writing  after  the  middle  of  the  century, 
takes  any  notice  of  the  cabinet  sj'stcm. 

It  is  from  the  opening  years  of  the  nineteenth  century 
only  that  we  can  date  a  full  understanding  of  the  cabinet  and 
of  the  way  in  which  ministerial  responsibility  is  enforced 
through  it,  though  even  then  the  understanding  was  rather 
that  of  practical  action  than  of  theoretical  description.  It 
was  not  until  about  the  middle  of  the  century  that  descrip- 
tions of  the  system  were  written  that  seem  satisfactory  to  us, 
and  well  past  the  middle  before  any  treatise  was  published 
upon  the  new  constitution  as  a  whole. 

We  must  continue  also  to  notice  that  parliament  was  not, 


PARLIAMENT  NOT  REPRESENTATIVE      413 

in  our  sense  of  the  term,  fully  a  representative  assembly  of 
the  people.  The  perfection  of  the  cabinet  system  did  not 
change  this  fact.  So  long  as  aristocratic  influence  could 
control  so  large  a  proportion  of  the  membership  of  the  house 
of  commons  through  the  pocket  and  rotten  boroughs,  and 
so  long  as  so  many  government  appointees  had  seats  in  the 
house  and  kindred  abuses  existed,  a  really  representative  as- 
sembly was  not  possible.  It  is  significant  that  the  period 
from  which  we  may  date  the  full  formation  of  the  cabinet 
system  saw  also  both  these  problems  taken  up  in  earnest. 
Pitt's  success  in  bringing  the  king's  personal  government  to 
an  end  was  in  part  due  to  the  results,  even  the  limited  results, 
obtained.  In  1782  the  horde  of  revenue  officers  which 
formed  one-eighth  or  more  of  all  voters,  and  who  could  easily 
be  voted  as  government  desired,  were  deprived  of  the  parlia- 
mentary franchise  1 ;  a  considerable  number  of  offices  usually 
filled  by  members  of  parliament  were  abolished;  contractors 
were  forbidden  to  sit  in  parliament,  and  secret  pensions 
brought  to  an  end.  Much  in  this  direction  remained  to 
be  done ;  the  work  was  not  finished  until  the  next  century, 
but  a  real  gain  had  been  made.  Still  more  important  per- 
haps in  its  general  effect  in  bringing  about  a  thorough 
change  is  the  fact  that  there  began  to  come  in,  from  a  little 
time  before  Pitt  became  prime  minister,  a  decidedly  higher 
tone  in  public  life,  due  doubtless  to  the  improved  standard 
of  conduct  in  private  life  which  characterizes  the  time.  This 
gradual  reformation  more  than  laws  and  prohibitions  made 
the  eighteenth  century  methods  of  corruption  no  longer  pos- 
sible. Disguised  bribery  and  secret  influence  die  very  slowly, 
but  since  1782  there  never  has  been  a  return  to  the  methods 
of  Newcastle  and  George  III. 

The  reform  of  parliamentary  representation,  a  more  equit- 
able distribution  of  seats  and  a  reduction  in  the  number  of 
nomination  members,  was  agitated  at  the  same  time.     The 
elder  Pitt  first  urged  the  necessity,  and  made  it  the  subject 
i  Robertson,  Statutes,  247-249. 


414  THE  RISE  OF  DEMOCRACY 

of  parliamentary  debate  in  1770.  In  1776  a  bill  to  make 
rather  extensive  changes  was  introduced,  but  it  was  thrown 
out  without  a  division.  In  1780  the  duke  of  Richmond  intro- 
duced another  reform  bill,  which  met  the  same  fate.  At  the 
ver}'  beginning  of  his  parliamentary  history,  the  3founger 
Pitt  seemed  inclined  to  make  the  subject  his  own.  Hu 
brought  it  forward  in  1782  in  a  very  effective  speech,  moving 
for  a  committee  of  inquiry,  and  was  beaten  by  only  twenty 
votes.  The  next  year,  still  as  a  member  of  the  opposition, 
he  proposed  resolutions  embodying  the  chief  points,  without 
effect.  Meantime  numerous  petitions  had  begun  to  come  in 
from  the  country  supporting  reform,  and  when  he,  Pitt,  be- 
came premier,  with  a  majority  behind  him,  he  returned  to  his 
plan  in  1785  with  a  proposal  of  rather  extensive  changes, 
but  was  beaten  by  a  majority  of  seventy-four.  The  house 
of  commons  had  yet  no  mind  to  reform  itself.  Before  the 
subject  could  be  taken  up  again  in  earnest,  the  French  revolu- 
tion came  on  and  speedily  set  up  among  the  ruling  classes 
in  England  a  not  unnatural  reaction  against  changes.  The 
plan  still  retained  much  popular  support,  and  was  brought 
forward  unsuccessfully  in  parliament  in  1790,  and  again 
with  somewhat  better  backing  by  Mr.  Grey,  afterwards  Earl 
Grey,  in  1792,  1793,  and  1797.  On  the  first  of  these  occa- 
sions Mr.  Pitt  declared  that  his  opinions  on  the  subject  had 
not  changed,  but  he  thought  the  time  unfavorable :  "  This 
is  not  a  time  to  make  hazardous  experiments."  It  must  be 
entered  upon  the  debit  side  of  the  French  revolution  account 
that  it  postponed  the  cause  of  parliamentary  reform  in 
England  for  a  generation. 

But  the  denial  of  parliamentary  reform  was  not  the  worst 
reaction  in  England  for  which  the  French  revolution  was 
responsible.  When  it  began,  it  was  rather  generally  greeted 
as  a  hopeful  movement  towards  liberty  and  better  govern- 
ment, but,  when  its  destructive  tendencies,  or  what  seemed 
to  be  destructive  tendencies,  became  more  evident,  strong 
opposition  developed  and  was  powerfully  aided  by  the  almost 


REPRESSION  OF  OPINION  415 

unparalleled  popular  effect  of  Burke's  Reflections  on  the 
French  Revolution,  which  appeared  in  1790  and  went  through 
thirty  editions  almost  at  once.  All  the  conservatively  in- 
clined and  all  who  thought  they  had  anything  to  lose  by 
change  took  alarm,  and  the  only  organs  through  which  a 
national  will  could  be  expressed  in  action  were  then  in  their 
hands.  As  the  successful  revolution  began  to  show  itself 
disposed  to  carry  its  doctrines  into  other  countries  by  force, 
and  especially  when  France  declared  war  on  England  at  the 
beginning  of  1793,  the  alarm  greatly  increased.  It  must  be 
confessed  that  it  had  some  ground  for  existence  in  the  not 
very  wise  efforts  at  propaganda  and  public  agitation  by 
the  supporters  of  more  liberal  ideas,  and  at  that  time  at  least 
in  the  popularity  of  Thomas  Paine's  Rights  of  Man,  almost 
equalling  that  of  Burke's  Reflections. 

There  followed  the  result  which  must  still  be  called  natural 
and  with  which  later  times  have  not  been  unfamiliar,  severe 
repression  by  law  and  even  worse  by  public  hysteria.  An 
alien  act  placed  restrictions  on  foreigners ;  the  habeas  corpus 
was  suspended  2 ;  a  new  treasons  act  was  passed,  making  it 
easier  to  secure  convictions ;  laws  were  made  against  seditious 
meetings,  with  authority  to  the  local  magistrate  to  deter- 
mine the  question  whether  there  was  sedition,  and  against 
societies  and  associations,  and  some  of  these  were  suppressed 
by  force ;  various  restrictions  were  placed  upon  the  press, 
and  writers  and  publishers  severely  punished ;  royal  procla- 
mations were  issued  against  seditious  writings  and  calling 
out  the  militia  to  repress  threatened  disorders,  and  warnings 
to  parliament  of  impending  revolution.  Worse  than  these 
abuses,  which  were  still  under  the  forms  of  law,  were  the 
numerous  cases  in  which  the  courts,  yielding  to  the  public 
panic,  in  the  trial  of  accused  persons  disregarded  the  safe- 
guards which  the  law  had  provided  for  persons  wrongfully 
accused,  allowed  convictions  on  the  flimsiest  evidence,  and 
inflicted  sentences  out  of  all  proportion  to  the  offence.  Fox 
2  A.  and  S.,  496-497. 


416  THE  RISE  OF  DEMOCRACY 

was  fully  justified  in  exclaiming,  on  hearing  of  certain  cases 
in  Scotland:  "  God  help  the  people  who  have  such  judges." 
We  find  it  difficult,  however,  to  learn  the  lesson  of  history 
which  was  long  ago  formulated  in  the  words :  the  best  defence 
against  revolution  is  not  repression  but  reform.  The 
general  and  severe  condemnation  by  all  parties  of  these  un- 
reasoning lapses  into  fear,  which  followed  after  peace  had 
come,  does  not  prevent  the  same  public  hysteria  in  a  new 
time  of  war,  and  the  same  forgctfulness  of  the  real  safe- 
guards of  liberty.  That  the  demand  to  which  the  official 
guardians  of  the  law  give  way  is  practically  universal  at  the 
time  only  makes  the  matter  worse,  for  as  everyone  admits, 
the  only  ultimate  safety  of  democracy  is  in  the  willingness 
of  the  people  to  be  faithful  in  all  honesty  to  the  restraints 
which  they  have  placed  upon  themselves. 

In  one  other  particular  that  age  of  warfare  exhibits  a 
result  of  which  there  have  been  later  examples  in  the  Anglo- 
Saxon  world  —  the  practical  suspension  of  parties,  the  cen- 
tralization of  government,  and  the  willingness  to  allow  almost 
dictatorial  powers  to  the  executive.  From  the  date  of  his 
first  dissolution  of  parliament,  Pitt  had  had  a  secure  working 
majority  on  almost  every  question  he  brought  forward,  but 
the  effect  of  the  war  was  to  disable  and  divide  the  opposition. 
From  the  beginning  of  1793  the  more  conservative  of  the 
whigs  supported  the  government  against  the  more  radical 
of  their  own  party,  and  in  the  next  year  their  leaders  were 
taken  into  the  ministry.  The  remaining  opposition  was 
naturally  led  to  a  more  careful,  if  somewhat  more  extreme, 
defence  of  their  own  position  and,  if  Pitt  may  be  said  to 
have  given  shape  to  a  new  tory  party,  Fox  also  had  his 
share  in  forming  a  new  whig  party,  leading  on  to  the  liberal- 
ism of  the  next  century.  The  immediate  result  was  an  over- 
whelming majority  for  the  cabinet  during  the  remainder  of 
Pitt's  ministry.  Fox  could  muster  barely  fifty  votes  in  the 
commons,  and  the  check  on  government  of  a  strong  opposi- 
tion   ready    to    take    its    place   was    removed.      These    facts 


SUSPENSION  OF  PARTIES  417 

explain  to  a  great  extent  the  steady  support  which  the  king 
gave  to  Pitt  for  so  long.  He  was  not  exactly  a  minister 
after  the  king's  heart,  but  there  was  no  opportunity  to  turn 
him  out  of  office.  Besides  George  very  well  knew  that  the 
only  alternative  was  Fox,  whom  he  detested  more  heartily. 

Outside  parliament  the  same  thing  was  true.  All  sorts 
and  shades  of  opinion,  except  the  liberal,  all  classes  and  pro- 
fessions, joined  in  support  of  the  government,  whatever  their 
previous  party  connections  had  been,  and  the  supporters  of 
the  opposition  had  to  put  up  even  with  social  ostracism. 
The  sympathy  of  later  writers  has  been  very  generally  with 
Fox  and  his  small  band  of  supporters,  and  it  is  certainly 
true  that  the  long  dominance  of  the  tory  party  during  the 
war  meant  an  equally  long  cessation  of  the  political  progress 
which  had  been  going  on  since  the  revolution  of  1688.  It 
must  not  be  overlooked,  however,  that  such  a  universal  rallying 
to  the  support  of  government  during  a  dangerous  struggle, 
and  a  ready  acquiescence  in  a  practical  dictatorship,  is  to  be 
expected  and  hoped  for.  It  has  its  roots  in  patriotism  and 
is  a  source  of  national  safety.  All  that  is  to  be  striven 
against  is  the  tendency  of  centralization  to  support  the  ex- 
cesses of  emotion  and  the  violations  of  personal  liberty  natu- 
ral under  excitement.  Pitt's  government  did  not  use  its 
absolute  power  to  endanger  public  liberty,  and  the  constitu- 
tion emerged  from  the  time  of  trial  uninjured. 

It  must  be  noticed  also  that  during  the  time  Pitt  was  in 
power  public  opinion  outside  parliament  acquired  better 
means  of  bringing  itself  to  bear  upon  actual  government 
and  made  more  frequent  use  of  them,  although  there 
was  no  improvement  in  parliamentary  representation.  The 
opinions  of  masses  of  the  nation,  of  large  bodies  who  think 
and  act  in  one  way,  came  to  be  a  more  active  influence  than 
before  in  shaping  the  national  policy.  A  striking  illustra- 
tion of  this  fact  is  to  be  seen  before  the  beginning  of  the 
war.  In  April,  1791,  Pitt  suddenly  dropped  his  Russian 
policy,  after  he  had  dispatched  an  ultimatum  to  that  govern- 


418  THE  RISE  OF  DEMOCRACY 

ment  and  while  lie  had  a  parliamentary  majority  for  the 
plan,  because  of  national  opposition.  More  important  is  it 
to  notice  the  constant  efforts  which  were  made  during  the 
war  to  express  public  feeling  on  both  sides  of  many  ques- 
tions, and  the  variety  of  ways  in  which  the  attempt  was 
made:  public  meetings,  processions,  deputations,  petitions, 
addresses  to  the  crown,  one  may  almost  include  riots  in  the 
list  under  the  conditions  of  the  eighteenth  century,  certainly 
the  organization  of  societies,  associations,  and  clubs  with 
names  proclaiming  their  doctrines  and  with  propaganda  in 
tracts,  handbills,  and  broadsides.  The  pamphlet  was  rela- 
tively less  frequently  employed  as  a  means  of  influencing 
opinion  than  a  century  earlier,  though  it  has  never  disap- 
peared to  this  day.  The  newspaper  press  had  so  greatly 
improved  in  three  generations  that  it  was  now  universally 
recognized  as  one  of  the  chief  means  both  of  forming  and 
expressing  public  opinion.  Men  were  beginning  also  vaguely 
to  feel  that  organization,  —  that  the  banding  together  of 
men  of  common  opinion,  intensified  their  influence. 

All  this  has  a  modern  appearance  when  we  consider  the 
practices  which  are  so  common  at  the  present  day ;  and 
modern  is  what  it  was.  More  correctly,  it  was  the  fore- 
shadowing of  a  change  which  would  require  a  century  for  its 
completion.  All  unconsciously  the  medieval  way  of  looking 
at  parliament,  indeed  the  medieval  function  itself  of  parlia- 
ment, was  beginning  to  be  modified.  A  gathering  of  wise 
men  from  all  parts  of  the  country  in  order  to  find  out 
what  the  nation  thinks  was  becoming  no  longer  necessary. 
There  were  other  ways  of  finding  out;  at  least  the  nation 
was  learning  other  methods  of  expressing  its  common  opinion, 
or  the  opinion  of  large  fractions  of  the  nation.  It  was 
beginning  slowly  to  perceive  that  the  chief  function  of  parlia- 
ment is  to  put  into  legal  form,  into  form  to  govern  executive 
officers  and  courts  of  justice,  the  decisions  which  it  has  itself 
reached  elsewhere.     It  had  not  yet  come  to  look  upon  an 


PUBLIC  OPINION  A  NEW  FACTOR  419 

election  as  giving  a  mandate  to  parliament ;  but  it  was 
beginning  half  consciously  to  see  that  it  must  take  pains  to 
convince  parliament  that  there  was  a  genuine  public  demand 
for  this  or  that  action  or  decision. 

The  age  of  the  war  with  France  is  the  first  great  age  in 
the  general  use  of  these  methods,  but  it  is  not  the  age  of 
their  invention.  From  early  in  the  reign  of  George  III  they 
had  been  increasingly  employed  with  effect.  In  the  case  of 
Wilkes,  a  newspaper  publisher  and  member  of  parliament, 
arrested  in  1763  for  an  attack  upon  the  king's  speech  de- 
clared to  be  libellous,  public  opinion,  expressed  in  these  ways, 
assisted  greatly  in  establishing  the  illegality  of  general  war- 
rants, —  that  is,  warrants  not  specifically  describing  the 
place  to  be  searched  or  the  persons  or  things  to  be  seized.3 
The  case  also  involved  the  right,  finally  maintained,  of 
juries  to  decide  on  the  libellous  character  of  a  publication 
on  general  grounds.  The  increasing  eagerness  of  the  public 
to  know  what  was  said  in  parliamentary  debates  is  another 
sign  of  the  same  tendency.  Parliament  had  always  debated 
with  closed  doors.  In  the  early  days  of  its  history  it  had 
been  a  measure  of  self-defence,  as  almost  the  only  way  of  pro- 
tecting itself  against  the  interference  of  the  king  with  the 
freedom  of  debate.  Now  the  seat  of  final  authority  and  the 
feeling  of  responsibility  to  it  were  beginning  to  change.  The 
public  began  to  be  interested  in  the  debates  in  parliament, 
not  merely  as  discussions  of  national  questions,  but  as  ex- 
pressions more  or  less  faithful  of  its  own  opinions.  Un- 
authorized and  largely  imaginative  reporting  of  debates  from 
memory  or  hearsay  had  begun  before  the  middle  of  the  cen- 
tury. During  the  time  when  the  troubles  with  the  American 
colonies  were  beginning,  reporting  improved  in  accuracy  and 
the  attention  of  the  house  of  commons  was  attracted.  The 
attempt  to  enforce  the  rules  of  the  house  against  publication 
broke  down  before  the  determined  opposition  of  the  city  of 
3  Robertson,  Statutes,  440-455;  A.  and  S.,  492-493. 


420  THE  RISE  OF  DEMOCRACY 


London.  Parliament  would  not  modify  its  rules  until  many 
years  later,  but  from  1771  on  tacitly  allowed  them  to  be 
violated  with  impunity. 

All  these  signs  of  the  increasing  interest  of  the  public  in 
national  questions,  of  increasing  desire  to  have  a  voice  in 
their  decision,  are  unmistakable  evidences  of  a  tendency  to- 
wards democracy.  But  in  a  far  different  way,  in  a  field  so 
remote  from  public  affairs  as  never  to  be  suspected,  the 
powerful  forces  were  being  prepared  which  in  another  age 
were  to  transform  England  into  a  real  democracy.  This 
preparation  of  democracy  is  what  must  be  considered  the  one 
great  forward  movement  in  constitutional  growth  of  the 
whole  period  from  the  accession  of  Pitt  to  power  to  the 
fall  of  Napoleon  in  1815.  If  in  its  origin  this  movement 
seems  to  carry  us  out  of  the  sphere  of  constitutional  history, 
it  does  so  only  to  emphasize  the  law  of  history  that  all  lines 
of  progress  are  dependent  one  upon  another. 

It  is  into  the  field  of  economic  advance  that  we  are  carried. 
The  economic  changes  which  began  about  the  middle  of  the 
eighteenth  century  brought  about  a  complete  revolution  in 
industry  and  commerce.4  Their  results  were  of  enormous 
value  in  enabling  England  to  sustain  the  crushing  burden  of 
the  twenty  years'  struggle  against  the  plans  of  French  con- 
quest. But  vast  as  were  these  consequences,  their  permanent 
effect  upon  the  history  of  the  world  was  not  greater  than 
another  which  followed  from  the  same  changes  and  whose 
influence  is  still  unexhausted,  the  rise  of  democracy.  They 
opened  through  this  result  a  new  epoch  in  England's  consti- 
tutional history  wider  in  import  than  did  the  accession  of 
the  house  of  Lancaster  or  of  the  house  of  Stuart. 

Fundamental  to  all  else,  though  not  first  in  time,  was  the 
application  of  steam  to  machinery,  because  it  removed  all 
limits  to  expansion.  Before  it  was  perfected  startling  inven- 
tions of  new  machinery  had  been  made  to  which  steam  could 
be  applied,  especially  in  the  manufacture  of  cloth.  But 
♦  Cheyney,  Readings,  610-615. 


THE  ECONOMIC  REVOLUTION  421 

steam  and  new  machinery  created  an  insistent  demand  for 
fuel  and  iron.  It  was  at  the  same  time  supplied  by  the  open- 
ing up  of  vast  quantities  of  coal  and  ore  near  at  hand,  and 
by  improved  methods  of  smelting  iron  and  making  steel.  No 
less  insistent  was  the  rapidly  increasing  production  for  better 
means  of  transportation  and  wider  markets.  Both  demands 
were  instantly  met.  A  network  of  canals  connected  the  new 
manufacturing  cities  with  one  another  and  with  the  sea,  while 
the  results  of  the  victories  over  France,  secured  in  the  peace 
of  1763,  opened  rapidly  expanding  -markets  and  sources  of 
raw  materials.  Commerce  grew  as  rapidly  as  industry,  and 
improvements  in  agriculture  during  the  same  years  at  least 
helped  to  meet  by  home  produce  the  demands  for  food  of  the 
population  concentrated  in  the.  centers  of  industry. 

The  concentration  of  population -was  the  line  of  transition 
to  the  political  result.  Machinery  operated  by  steam  meant 
factories,  and  factories  meant  concentrated  population. 
Cottage  and  village  industries  by  degrees  disappeared. 
Large  towns  were  formed  where  none  had  been  before,  and 
old  ones  grew  larger.  Two  results  followed.  The  old  classes 
were  in  a  single  generation  heavily  reinforced  from  below. 
The  profits  of  industry  endowed  a  new  wealthy  class  which 
arose  from  among  the  manufacturers,  or  from  families  not 
prominent  before,  to  take  a  place  in  popular  influence  beside 
the  old  aristocracy.  At  the  same  time  the  middle  class  re- 
ceived a  large  accession  of  numbers,  and  we  may  almost  say 
that  a  wholly  new  laboring  class  was  created,  so  greatly  did 
it  differ  from  the  more  stolid,  slow,  and  unreasoning  laborers 
of  a  mainly  rural  England.  With  these  changes  in  the  con- 
tent of  classes  went  a  change  of  atmosphere,  especially  of 
political  atmosphere,  in  large  portions  of  the  country.  The 
new  elements  which  began  to  make  themselves  felt  in  public 
life  were  not  inclined  to  conservatism.  They  were  restless 
under  many  of  the  conditions  in  which  they  found  themselves  ; 
they  were  little  bound  by  old  ideas,  were  ready  to  change, 
inclined  even  to  be  radical  and  deeply  interested  in  certain 


422  THE  RISE  OF  DEMOCRACY 

reform  demands  which  affected  their  position  in  the  state  or 
their  local  situation. 

The  impression  must  not  be  given  that  a  violent  revolution 
in  public  life  was  wrought  all  at  once.  The  first  effect  was 
tendency  rather  than  actual  achievement.  But  a  beginning 
was  made  at  once  from  which  there  was  no  going  back.  The 
changes  which  resulted  from  and  attended  the  economic 
revolution  somewhat  slowly  developed  into  a  great  movement 
towards  a  democratic  control  of  government  and  of  all  pub- 
lic interests.  This  movement  has  gone  on  constantly  widen- 
ing and  deepening  from  that  day  to  this  and  constantly  ac- 
complishing more  and  more  of  its  aims  in  the  management 
of  national  and  local  affairs.  In  one  very  true  sense  the 
changes  brought  about  were  not  revolutionary.  They  were 
no  break  with  England's  past,  but  the  logical  outgrowth,  the 
consummation  in  practical  government,  of  that  slow  drift 
towards  the  sovereignty  of  the  people  which  began  long  cen- 
turies ago  in  English  history.  The  puritan  attempt,  in  a 
revolutionary  atmosphere  and  under  the  stimulus  of  radical 
religious  thought,  to  accomplish  these  ends  prematurely  led 
to  failure  in  England,  but  in  America  to  an  earlier  and  more 
complete  fulfillment  of  the  natural  tendencies  of  the  past. 
Now  early  in  the  nineteenth  century,  England  began  an 
approach  to  these  same  democratic  results,  slower  than 
would  have  satisfied  the  independents,  but  rapid  as  compared 
with  the  intervening  generations.  We  are  apt  to  think  of 
the  change  as  revolutionary,  partly  because  of  the  striking 
character  of  the  changes  made,  and  partly  because  there  now 
enter  plainly  into  the  political  arena  forces  which  had  been 
heretofore  more  disguised  in  their  action,  economic  forces, 
and  new  classes. 

Apart  from  the  war  with  France  and  the  management  of 
national  finances,  the  great  measure  of  Pitt's  administration 
which  may  be  called  one  of  constructive  statesmanship  was 
the  union  with  Ireland.  The  union  with  Scotland  in  1707 
was  a  union  made  between  independent  nations  by  equal  nego- 


UNION  WITH  IRELAND  423 

tiation  and  with  mutual  concessions.  Ireland,  however,  was 
a  subject  nation,  and  a  subject  nation  with  peculiar  dis- 
abilties.  Concessions  had  been  made  to  Irish  independence 
since  the  accession  of  the  king  —  Poyning's  acts  had  been 
repealed  and  the  act  of  George  I  which  gave  the  English  par- 
liament the  right  to  make  laws  for  Ireland  5  —  but  the  situa- 
tion had  not  been  materially  affected  in  matters  that  were 
concerned  in  the  making  of  the  union.  Negotiations  had 
to  be  carried  on  not  with  Ireland  but  with  the  owners  of 
pocket  boroughs,  and  the  concessions  had  to  be  made  to  indi- 
viduals who  commanded  political  influence.  Out  of  118 
boroughs  sending  members  to  the  Irish  house  of  commons  110 
were  privately  owned. 

Ireland  was  in  a  position  which  might  be  one  of  consider- 
able danger  to  Great  Britain.  Full  legislative  independence 
had  been  granted  to  the  Irish  parliament  by  the  repeal  of 
the  acts  named  above  in  1782,6  but  the  Irish  parliament  had 
no  real  check  upon  the  executive,  which  was  appointed  by 
and  responsible  to  the  English  ministry  of  the  day,  and 
which,  through  the  corrupt  system  of  representation  pre- 
vailing, could  control  the  legislature.  In  1793  the  parlia- 
mentary franchise  was  granted  to  catholics,  but  they  were 
still  disqualified  from  being  themselves  elected,  though  they 
obtained  freedom  of  worship,  of  education  and  land-holding, 
and  of  appointment  to  commissions  in  the  army  and  navy. 
The  English  church  was  the  established  church  of  the  island, 
and  all  nonconformists,  protestant  as  well  as  catholic,  had 
to  pay  tithes  for  its  support.  In  1798  discontent  led  to 
rebellion.  The  plan  to  combine  protestant  and  catholic  dis- 
senters in  the  effort  had  failed  and  the  attempt  was  made 
by  the  catholics.  It  was  foredoomed  to  failure  unless  strong 
French  forces  could  be  landed,  and  the  several  expeditions 
sent  from  France  were  all  failures.  The  insurrection  accom- 
plished nothing  except  to  add  new  memories  of  excesses  of 

s  Robertson,  Statutes,  204-205. 
e  Robertson,  Statutes,  258-260. 


424.  THE  RISE  OF  DEMOCRACY 

violence  and  atrocity  on  both  sides  to  make  the  future  still 
more  difficult. 

Ireland  remained,  however,  a  threat  of  danger  which 
should  if  possible  be  removed.  After  the  rebellion  had  been 
put  down,  Pitt  resolved  to  bring  Irish  legislative  independ- 
ence to  an  end,  and  he  believed  that  it  was  necessary  at  the 
same  time  to  end  the  protestant  supremacy.  If  Pitt's  whole 
plan  could  have  been  adopted,  the  future  of  Anglo-Irish 
relations  might  have  been  different.  He  carried  the  political 
part  of  his  proposal  and  failed  with  the  ecclesiastical.7  The 
Irish  parliament  was  brought  to  an  end.  The  private  owners 
of  boroughs  were  compensated  at  heavy  expense.  A  hun- 
dred Irish  members  were  added  to  the  British  house  of  com- 
mons, and  twenty-eight  Irish  lay  peers,  elected  for  life,  with 
four  ecclesiastical  peers,  were  added  to  the  house  of  lords. 
An  Irish  peer,  not  serving  in  the  British  house  of  lords, 
might  be  elected  to  the  house  of  commons  by  an  English  but 
not  by  an  Irish  constituency  —  an  arrangement  afterwards 
taken  advantage  of  by  Lords  Castlereagh  and  Palmerston. 

Pitt,  however,  had  no  idea  that  an  absorption  of  Ireland 
into  a  United  Kingdom  alone  would  solve  the  difficulties  in 
that  country.  The  political  union  was  only  the  first  step  in 
a  series  of  reforms  which  he  hoped  to  carry,  and  a  prelim- 
inary step  only.  Those  that  were  to  follow  were  expected 
to  bring  in  the  really  constructive  results,  and  of  these 
catholic  emancipation,  the  establishment  of  complete  polit- 
ical equality  for  catholics,  was  the  essential  introductory 
measure.  It  was  with  this  understanding  that  the  union 
had  been  adopted  in  Ireland.  Pitt  made  no  definite  pledge, 
but  the  cabinet  did  allow  it  to  be  understood  that  catholic 
relief  was  to  follow.  In  this  matter,  however,  the  policy  of 
the  ministry  came  into  collision  with  the  obstinacy  of  the 
king.  George  III  was  violently  opposed  on  religious 
grounds.  He  believed  also  that,  as  he  had  sworn  in  his 
coronation  oath  "  to  maintain  to  the  bishops  and  clergy  of 
I     »  A.  and  S.,  497-506;  Robertson,  Statutes,  283-292. 


GEORGE  III  AND  IRELAND  425 

the  realm  and  the  churches  committed  to  their  charge  all 
such  rights  and  privileges  as  by  law  do  and  shall  appertain 
to  them  or  any  of  them,"  he  should  be  guilty  of  perjury  if 
he  yielded.  Pitt  did  not  handle  the  crisis  with  his  earlier 
skill,  and  found  himself  obliged  to  resign.  The  stand  of 
George  III  on  this  question  is  the  last  serious  case  which 
has  occurred  of  the  interference  of  the  royal  prerogative 
with  a  policy  deliberately  formed  by  the  responsible  ministry 
of  the  crown.  Other  instances  of  interference  are  to  be 
noted  but  they  are  of  minor  importance.  By  this  interfer- 
ence much  needed  catholic  emancipation  was  postponed  for 
nearly  thirty  years. 

The  ministries  which  follow  one  another  at  comparatively 
short  intervals  until  1812  present  in  their  policies  no  points 
of  especial  constitutional  interest.  When  Pitt  became  prime 
minister  again  in  1804,  he  was  anxious  to  include  Fox  in  his 
cabinet,  but  the  king  positively  refused,  and  the  ministry 
was  formed  without  him.  On  the  death  of  Pitt,  however, 
in  1806,  his  ministry  crumbled  to  pieces  and  the  king  found 
no  alternative  possible  but  to  accept  the  ministry  of  "  all 
the  talents  "  with  Fox  as  foreign  secretary.  When  Pitt 
resigned  in  1801,  he  had  promised  out  of  sympathy  for  the 
king,  who  had  been  threatened  with  serious  illness  by  his 
anxiety  over  the  catholic  question,  that  he  would  never 
bring  forward  the  measure  again  so  long  as  George  should 
live.  In  1807  the  king  required  a  similar  pledge  of  Lord 
Grenville's  ministry,  in  view  of  a  measure  they  proposed. 
They  refused  to  give  the  pledge  and  resigned.  For  a  short 
time  in  this  interval  of  shifting  ministries  the  whigs  were  in 
office,  but  in  1812  Lord  Liverpool's  tory  administration  of 
fifteen  years  began. 

Before  this  date,  however,  the  reign  of  George  III  had 
really  closed.  He  had  been  subject  to  occasional  attacks 
of  mental  disease,  during  which  he  was  incapacitated  for 
any  share  in  public  business.  From  the  earlier  ones  he  had 
shortly  recovered,  but  the  attack  of  1810  was  permanent, 


426  THE  RISE  OF  DEMOCRACY 

and  the  regency  to  1820  is  one  of  the  longest  in  English 
history.  At  the  time  of  the  king's  illness  in  1788  a  debate 
of  considerable  constitutional  interest  concerning  regencies 
had  taken  place.  In  earlier  times  the  great  council  had  had 
some  share,- though  not  definitely  defined,  in  the  appointment 
and  regulation  of  regencies.  Its  successor,  the  parliament, 
particularly  during  the  age  of  special  parliamentary  activ- 
ity, the  fifteenth  century,  had  assumed  a  wider  function. 
From  the  precedents  of  that  time  it  might  be  fairly  argued 
that  the  sole  power  to  appoint  the  regent,  as  well  as  to 
define  the  limitations  under  which  he  should  exercise  the  royal 
prerogatives,  resided  in  parliament,  and  that  no  person,  not 
even  the  direct  heir  to  the  crown,  could  claim  the  place  of 
right.  By  statute  in  the  reign  of  Henr}'  VIII  the  king  was 
given  the  power,  as  if  he  did  not  otherwise  possess  it,  to 
appoint  a  council  of  regency  for  his  successor,  if  one  should 
be  needed,  and  he  did  appoint  such  a  council  for  his  son 
Edward  VI,  but  the  arrangement  which  he  made  was  some- 
what changed  after  Henry's  death. 

This  was  the  question  at  issue  in  1788.  It  had  been  the 
Hanoverian  fashion  for  the  prince  of  Wales  to  be  opposed, 
sometimes  bitterly  opposed,  to  his  father,  and  to  head  the 
parliamentary  opposition  to  the  cabinet  in  office.  In  1788, 
the  future  George  IV  was  in  close  alliance  with  the  whig  part}' 
leaders,  who  were  out  of  office  and  eager  to  take  the  place 
of  Pitt's  ministry  yet  only  five  years  old.  It  was  commonly 
believed  that  if  the  prince  of  Wales  became  regent  the  whigs 
would  come  in  by  as  sudden  an  act  of  prerogative  as  that 
by  which  Pitt  had  been  appointed  by  the  king.  They  there- 
fore argued  that  the  place  of  regent  was  his  of  right  and 
with  the  full  powers  of  the  king,  and  that  parliament's 
function  was  limited  to  deciding  when  the  regency  should 
begin.  This  claim,  though  strongly  argued,  received  little 
support  from  history  or  in  the  public  opinion  of  the  time. 
Pitt,  who  evidently  believed  that  still,  as  in  his  own  case,  a 
political  party  with  the  support  of  the  king  could  retain 


THE  REGENCY  427 

power  against  the  will  of  parliament,  argued  with  general 
agreement  that  the  right  of  parliament  was  complete  to  do 
whatever  it  should  think  best  in  the  case.  Even  the  prince 
of  Wales  was  moved  by  the  weight  of  opposition  to  declare 
through  his  brother,  the  duke  of  York,  in  a  formal  statement 
in  the  house  of  lords,  that  "  he  understood  too  well  the  sacred 
principles  which  seated  the  House  of  Brunswick  on  the 
throne,  ever  to  assume  or  exercise  any  power,  be  his  claim 
what  it  might,  not  derived  from  the  will  of  the  people,  ex- 
pressed by  their  representatives  and  their  lordships  in  parlia- 
ment assembled." 

The  principles  for  which  Pitt  had  argued  were  applied  in 
the  regency  bill  which  was  passed  in  February,  1811,  in  spite 
of  considerable  opposition  and  the  formal  protest  of  the  sons 
of  George  III.8  The  prince  of  Wales  was  made  regent,  but 
under  some  limitation  upon  his  exercise  of  royal  prerogatives. 
It  was  expected  again  that  the  tories  would  be  at  once  turned 
out  of  office  and  a  whig  ministry  formed.  Such  an  arbitrary 
exercise  of  the  king's  power  would  have  been  acquiesced  in 
without  serious  opposition,  even  at  that  date,  notwithstand- 
ing the  great  progress  which  had  been  made  since  1788  in 
the  understanding  of  cabinet  government.  The  prince  at 
once,  however,  began  to  look  at  things  from  the  standpoint 
of  the  king,  instead  of  the  heir,  and  no  change  of  ministry 
was  made.  During  the  rest  of  his  life  he  proved  himself  as 
thoroughgoing  a  tory  as  his  father  had  been.  One  change 
in  the  arrangements  made  for  regencies  should  be  noticed. 
In  early  times  it  had  been  customary  to  appoint  distinct 
councils  of  regency  with  a  special  responsibility  to  parlia- 
ment. When  the  responsible  relation  of  the  cabinet  to  the 
government  of  the  country  began  to  be  perceived,  it  was 
seen  that  this  special  council  was  no  longer  necessary  and 
it  ceased  to  be  a  feature  of  the  later  regency  acts. 

Not  merely  was  the  function  of  the  cabinet  by  this  date 
better  understood,  but  the  necessity,  against  which  almost 
s  Robertson,  Statutes,  171-182. 


428  THE  RISE  OF  DEMOCRACY 

the  whole  eighteenth  century  had  protested,  of  the  office  of 
prime  minister  as  well.  This  understanding  is  well  stated  in 
a  letter  of  Lord  Melville's  in  1803,  explaining  Pitt's  views 
about  entering  the  Addington  cabinet.  Lord  Melville  said 
that  Pitt  had  "  stated  not  less  pointedly  and  decidedly  his 
sentiments  with  regard  to  the  absolute  necessity  there  is  in 
the  conduct  of  the  affairs  of  this  country,  that  there  should 
be  an  avowed  and  real  minister,  possessing  the  chief  weight  in 
the  council,  and  the  principal  place  in  the  confidence  of  the 
king.  In  that  respect  there  can  be  no  rivalry  or  division 
of  power.  That  power  must  rest  in  the  person  generally 
called  the  First  Minister,  and  .that  minister  ought,  he  thinks, 
to  be  the  person  at  the  head  of  the  finances.  He  knows,  to 
his  own  comfortable  experience,  that  notwithstanding  the 
abstract  truth  of  that  general  proposition,  it  is  noways  in- 
compatible with  the  most  cordial  concert  and  mutual  ex- 
change of  advice  and  intercourse  amongst  the  different 
branches  of  executive  departments ;  but  still,  if  it  should 
come  unfortunately  to  such  a  radical  difference  of  opinion 
that  no  spirit  of  conciliation  or  concession  can  reconcile,  the 
sentiments  of  the  minister  must  be  allowed  and  understood 
to  prevail,  leaving  the  other  members  of  administration  to 
act  as  they  may  conceive  themselves  conscientiously  called 
upon  to  act  under  the  circumstances." 

Pitt's  experience  very  likely  led  him  to  an  earlier  percep- 
tion of  the  true  place  of  the  prime  minister  than  was  general, 
but  in  the  first  decade  of  the  nineteenth  century  we  may 
consider  the  cabinet  system  in  full  operation,  though  it  is 
some  time  later  still  before  any  intelligent  account  of  it  as  a 
whole  was  put  into  print.  It  was  Pitt's  long  ministry,  the 
clearness  with  which  he  recognized  his  position,  the  absence 
from  his  cabinet  of  any  rival  in  intellectual  ability,  the  tact 
with  which  he  determined  relations  with  the  king,  and,  it 
must  be  added,  the  national  centralization  which  came  with 
a  time  of  war,  all  these  together  which  brought  the  modern 
office  of  prime  minister  finally  into  existence.     With  it  came 


A  NEW  AGE  429 

also  more  clearly  than  before  cabinet  solidarity  and  the  ex- 
clusion of  the  king  from  practical  government.  When  the 
cabinet  must  follow  the  prime  minister  as  a  unit,  and  when 
the  king  can  no  longer  interfere  with  the  policy  of  the  prime 
minister  through  members  of  his  cabinet  who  hold  a  position 
independent  of  him,  the  modern  system  is  in  operation. 

The  close  of  the  struggle  with  Napoleon  in  1815  marks 
the  beginning  of  a  new  age  in  English  history.  As  we  study 
the  details  of  that  transition,  it  seems  to  us  almost  as  if 
we  passed  at  a  single  step  from  conditions  as  strange  to  us 
as  the  eighteenth  century  is  into  conditions  and  atmosphere 
much  more  familiar  and  modern.  Partly  this  feeling  is  due 
to  the  appearance  in  public  life  of  a  group  of  young  men 
whose  activities  and  those  of  their  slightly  younger  contem- 
poraries form  a  part  of  the  familiar  tradition  and  even 
the  personal  knowledge  of  men  still  in  middle  life.  It  is  also 
due  in  part  to  the  fact  that  the  results  of  the  economic 
revolution  now  begin  to  make  themselves  distinctly  visible  in 
the  political  sphere,  and  these  are  results  which  have  gone 
on  with  increasing  influence  until  they  really  dominate  public 
life  at  the  present  day.  It  is  certainly  in  some  of  its  deter- 
mining qualities  more  truly  a  contemporary  than  a  Georgian 
atmosphere  into  which  we  pass  in  1815. 

Especially  interesting  is  the  group  of  new  men  who  had 
then  just  taken  their  places  upon  the  political  stage  or  were 
soon  to  do  so.  Brougham,  Palmerston,  Sir  Robert  Peel,  and 
Lord  John  Russell  were  already  in  parliament,  and  Palmers- 
ton  and  Peel  had  begun  their  official  careers ;  the  former  was 
thirty-one  and  the  latter  twenty-seven.  William  Cobbett, 
like  Robert  Owen,  was  considerably  older,  but  his  career  of 
reform  without  reserve,  in  which  he  particularly  represents 
certain  of  the  results  of  the  economic  revolution,  does  not 
begin  until  1816.  Younger,  all  born  after  the  opening  of 
the  nineteenth  century,  but  shaped  by  the  new  influences  and 
soon  to  begin  their  great  careers,  were  Richard  Cobden,  John 
Bright,  Gladstone,  and  Disraeli.     Upon  most  of  these,  upon 


430  THE  RISE  OF  DEMOCRACY 

Peel,  Cobden,  Bright,  and  Gladstone  at  least,  the  forces  cre- 
ated by  the  new  social  and  political  movement  had  as  pro- 
found effect  in  some  ways  as  upon  Cobbett  and  Owen.  It 
is  through  their  work  indeed  that  these  forces  first  come  to 
political  expression.  It  is  interesting  to  note  that  in  the 
history  of  the  United  States  the  age  is  in  the  same  respects 
a  new  one,  and  characterized  also  by  the  appearance  in 
public  life  of  the  group  of  new  men  who  dominate  the  middle 
generation  of  the  century,  Calhoun,  Webster,  Clay,  John 
Quincy  Adams,  and  Andrew  Jackson,  whose  career  and  place 
in  public  life  is  not  unlike  the  duke  of  Wellington's  in 
England. 

Far  greater,  however,  was  the  effect  of  the  economic 
changes  in  the  general  life  of  the  time  than  any  which  shows 
itself  in  the  activities  even  of  the  leaders  of  political  affairs 
in  the  new  period.  The  war  had  been  a  time  of  apparent 
prosperity.  Rapid  sales  with  high  prices  had  prevailed ; 
commerce  and  manufactures  had  expanded  and  wealth  had 
been  rapidly  accumulated.  But  the  prosperity  had  been 
somewhat  artificial  and,  with  the  removal  of  the  peculiar 
conditions  created  by  the  war,  it  declined,  and  economic  dis- 
tress became  general  among  the  less  well-to-do  classes.  The 
years  which  immediately  followed  the  close  of  the  war  were 
filled  with  unrest  and  agitation,  partly  economic  owing  to 
real  destitution  among  the  working  classes,  and  partly  due 
to  a  desire  for  parliamentar}'  reform  or  more  revolutionary 
changes  in  the  direction  of  socialism.  Parliament  was  still 
in  the  hands  of  the  aristocratic  portion  of  the  nation,  chiefly 
the  land-owning  class,  and  the  policy  which  was  adopted 
towards  agitation  was  one  of  harsh  repression.  There  was 
some  extravagance  of  word  and  action  on  the  part  of  the 
radical  elements,  and  these  were  held  to  justify  the  use  even 
of  force,  amounting  in  one  case  to  what  became  known  as  the 
Peterloo  massacre.  New  acts  were  passed  against  sedition, 
limiting  the  right  of  public  meeting  and  of  the  using  of  arms, 
and  increasing  the  severity  of  existing  laws,  and  the  writ  of 


THE  BEGINNING  OF  REFORM  431 

habeas  corpus  was  suspended.9  But  it  soon  became  evident 
that  the  social  changes  of  the  last  decades  had  created  a  new 
type  of  workingman  not  so  easily  held  down.  The  agitation 
continued  notwithstanding  all  efforts  at  repression,  and  soon 
began  to  find  spokesmen  in  the  house  of  commons.  It  has 
been  said  that  the  first  great  radical  victory  won  in  parlia- 
ment was  the  repeal  in  1824-  of  the  combination  laws,  the  laws 
under  which  combinations  of  workingmen  to  better  their 
condition  were  held  illegal. 

But  b}7  1824<  the  indications  were  already  clear  that  the 
first  great  reform  age  of  the  nineteenth  century  was  opening. 
The  ministry  of  Lord  Liverpool  as  reconstructed  in  1822—23, 
though  tory,  was  a  reform  ministry,  if  reforms  did  not  cut 
too  deeply  into  the  constitution.  Changes  in  the  criminal 
law  had  long  been  urged.  About  two  hundred  capital  crimes 
were  contained  in  the  criminal  code  of  the  early  nineteenth 
century,  most  of  them  inherited  from  the  middle  ages. 
Thirty-five  kinds  of  forgery  were  punishable  with  death,  as 
well  as  many  slight  offences  like  petty  larceny.  While 
in  actual  practice  so  severe  penalties  were  not  exacted,  the 
whole  code  needed  reconstruction.  This  was  given  it  be- 
tween 1822  and  1830,  and  the  death  penalty  left  on  the 
statute  books  only  for  serious  crime.  The  procedure  of 
criminal  trials  was  at  the  same  time  simplified. 

Financial  reforms  important  in  themselves,  and  even  more 
important  as  opening  a  long  series  of  similar  reforms,  were 
adopted.  The  navigation  laws,  many  centuries  old,  might 
be  abandoned  under  reciprocity  treaties  with  any  nation 
which  would  grant  a  like  concession  —  the  practical  end  of 
the  system.  The  corn  laws,  also  of  long  standing  and 
strengthened  at  the  end  of  the  war  as  a  protection  to  national 
agriculture,  which  did  at  that  time  need  assistance,  were 
modified  and  their  wisdom  sharply  challenged.  More  im- 
portant still,  the  general  protective  system  was  attacked. 
No  attempt  was  made  to  bring  in  free  trade,  but  progress 
9  Cheyney,  Readings,  663-669;  Robertson,  Statutes,  512-517. 


432  THE  RISE  OF  DEMOCRACY 

was  made  towards  that  result.  Tariff  duties  were  lowered, 
in  some  cases  very  decidedly  lowered,  on  a  long  list  of  articles, 
and  absolute  prohibitions  removed,  of  manufactured  goods 
and  especially  of  raw  materials.  Bounties  on  exports  and 
prohibitions  on  the  emigration  of  workmen  were  abolished. 
A  large  beginning  was  made  but  the  way  was  still  long  to 
free  trade,  and  yet  enough  had  been  done  to  allow  the  evi- 
dence of  facts  and  experience  to  accumulate. 

More  striking  in  the  popular  judgment  and  equally  essen- 
tial to  future  progress  were  the  steps  taken  towards  religious 
toleration.  During  the  reign  of  George  III,  from  1760  to 
1820,  both  protestant  and  catholic  dissenters  had  been  re- 
lieved of  many  disabilities.  These  had  concerned,  however, 
matters  of  religious  belief  and  practice  rather  than  political 
status.  The  test  and  corporation  acts  of  the  seventeenth 
century  still  remained  enforceable  in  law,  though  they  were 
in  practice  generally  disregarded  and  annual  acts  of  in- 
demnity passed  to  relieve  from  penalties  those  who  had  vio- 
lated them.  They  were  at  last  repealed  in  1828.  In  the 
next  year  the  even  more  important  "  catholic  emancipation 
act  "  was  passed.10  The  union  with  Ireland  had  increased 
greatly  the  proportion  of  catholics  in  the  population  for 
which  it  was  the  duty  of  parliament  to  legislate,  and  forced 
into  attention  the  injustice  of  the  existing  laws.  The  in- 
creasing agitation  in  Ireland,  led  by  Daniel  O'Connell, 
brought  the  country  to  the  verge  of  civil  war.  The  change 
was  carried  by  the  tory  ministry  of  the  duke  of  Wellington 
in  1829.  At  first  George  IV  declared  as  violently  as  his 
father  had  done  that  he  would  not  consent,  but  he  was  com- 
pelled by  the  force  of  circumstances  to  yield  —  the  last  occa- 
sion on  which  a  British  king  threatened  to  thwart  a  measure 
to  which  the  cabinet  had  agreed.  The  act  of  emancipation 
admitted  catholics  to  both  houses  of  parliament  and  to  all 
public  offices,  local  and  national,  except  a  very  few.  Com- 
paratively little  yet  remained  to  be  done  in  this  direction, 
io  Robertson,  Statutes,  312-3-27;  A.  and  S.,  508-513. 


CATHOLIC  EMANCIPATION  433 

but  Jews  were  not  admitted  to  parliament  until  1858,  nor 
nonconformists  on  equal  terms  to  the  universities  until  1871. 
Meantime  a  general  popular  demand  had  sprung  up  for 
a  reform,  more  important  from  a  strictly  constitutional  point 
of  view  and  more  difficult  to  carry,  the  reform  of  parlia- 
mentary representation.  Generally  recognized  as  necessary 
for  two  generations,  and  many  times  brought  forward  in 
parliament  by  one  advocate  or  another,  it  now  became  an 
object  of  increasing  agitation  among  the  people,  but  its 
serious  consideration  by  the  parliament  which  had  granted 
catholic  relief  was  prevented  by  the  necessity  of  a  general 
election  on  the  death  of  the  king.  George  III  had  died  in 
1820,  though  his  reign  had  really  ceased  in  1810  upon  his 
permanent  disability.  In  the  severe  struggles  through  which 
the  nation  had  been  called  to  pass  after  1790,  the  king  had 
shown  himself  so  thoroughly  at  one  with  his  people  in  senti- 
ment and  purpose  and  so  devoted  to  the  national  cause  that 
he  had  won  a  degree  of  affectionate  regard  hardly  before  ob- 
tained by  any  English  king.  His  son,  George  IV,  inherited 
none  of  this  regard,  either  personal  or  political,  but  on  the 
contrary  his  moral  character  and  his  ignorance  and  lack  of 
interest  in  matters  of  government  made  him  the  least  re- 
spected of  kings.  He  was  succeeded  by  his  brother,  William 
IV,  who  was  equally  ignorant  of  public  affairs  but  who  re- 
tained his  whig  principles,  and  was  more  conscientious  about 
the  duties  which  should  fall  to  a  king  and  more  scrupulous 
to  regard  the  limitations  of  his  constitutional  position. 

Bibliographical  Note. —  P.  A.  Brown,  The  French  Revolu- 
tion in  English  History,  1918.  P.  Mantoux,  La  Revolution  In- 
dustrielle  au  XVIII*  Siccle,  1905.  E.  Porritt,  The  Unreformed 
House  of  Commons,  2  vols.,  1903.  Lord  Rosebery,  Pitt,  1891. 
A.  Toynbee,  Lectures  on  the  Industrial  Revolution,  1913.  G.  M. 
Trevelyan,  Lord  Grey  of  the  Reform  Bill,  1920.  Sir  G.  O. 
Trevelyan,  George  III  and  Charles  Fox,  1914.  G.  S.  Veitch, 
The  Genesis  of  Parliamentary  Reform,  1913.  G.  Wallas,  Life 
of  Francis  Place,  1898. 


CHAPTER  XVIII 

THE  AGE  OF  REFORM 

The  necessity  of  the  reform  of  parliamentary  representa- 
tion had  been  almost  forced  upon  the  attention  of  thinking 
men  by  the  corrupt  practices  of  the  eighteenth  century. 
Lord  Chatham  denounced  the  existing  system  severely  in 
1766,  and  again  in  1770.  In  1776  Wilkes  introduced  a  bill 
making  extensive  changes,  but  he  could  not  get  a  division 
upon  it.  In  1780  the  duke  of  Richmond  fared  no  better  with 
a  bill  which  went  farther  in  the  way  of  change  than  parlia- 
ment could  be  persuaded  to  go  for  more  than  a  century 
following.  The  younger  Pitt  made  motions  in  the  house 
looking  to  reform  in  1782  and  1783  without  success  and,  as 
prime  minister,  in  1785  failed  to  obtain  leave  to  introduce 
a  bill  making  very  considerable  reforms.  He  proposed  to 
purchase  at  the  expense  of  the  state,  as  it  was  then  thought 
justice  demanded,  the  rights  of  private  owners  and  borough 
corporations  in  nearly  fifty  boroughs  and  to  transfer  their 
representation  to  London  and  the  counties.  This  was  Pitt's 
last  attempt,  but  others  took  up  the  rather  hopeless  effort : 
Flood  in  1790,  and  in  179&  Grey,  afterwards  earl  Grey,  so 
long  identified  with  the  reform,  and  again  in  1793  and  1797. 
It  was  nothing  more  than  natural  that  the  French  revolution, 
with  what  seemed  to  many  the  excesses  necessarily  brought 
on  by  its  democratic  tendency,  should  lead  to  a  reaction 
against  any  plan  which  appeared  to  have  similar  tendencies, 
and  it  required  many  years  to  remove  the  fear  of  the  results 
of  reform  from  the  minds  of  statesmen  who  had  had  their 
training  in  the  period  of  struggle.  The  subject  was  brought 
forward  in  vain  in  1809,  in  1810,  in  1818,  and  in  1819. 
Lord  John  Russell,  who  had  so  much  to  do  with  the  passage 

434 


UNEQUAL  REPRESENTATION  435 

of  the  reform  bill  of  1832,  made  his  first  motion  for  the  pur- 
pose in  1820  and  repeated  it  in  1822,  1823,  1826,  1828  and 
1830.  Meantime  attempts  had  been  made  by  others,  and 
it  was  clear  that  a  great  weight  of  public  opinion  was  col- 
lecting behind  the  effort. 

The  result  of  the  industrial  revolution  in  creating  a  more 
democratic  spirit  had  greatly  increased  the  public  support 
which  could  be  relied  on  for  a  measure  of  reform,  but  the 
argument  against  the  old  system  had  long  been  complete. 
No  change  had  been  made  in  the  election  laws  since  the 
fifteenth  century,  and  members  were  still  elected  from  the 
counties  by  the  votes  of  the  holders  of  freehold  land  of  the 
annual  value  of  forty  shillings,  and  from  an  arbitrary  list 
of  boroughs,  long  regarded  as  fixed,  in  which  the  right  of 
suffrage  was  defined  in  widely  varying  ways  as  each  borough 
had  originally  determined  for  itself.  Glaring  inequalities 
had  always  existed  in  the  relation  of  representation  to  popu- 
lation, to  some  extent  in  the  counties  and  to  a  great  extent 
in  the  boroughs.  The  puritan  reformers  had  dealt  with  this 
matter  in  the  modern  sense,  but  their  measures  were  not  con- 
tinued, and  the  inequalities,  especially  in  the  case  of  the 
boroughs,  were  greatly  increased  by  the  changes  in  popula- 
tion which  followed  the  industrial  revolution.  Large  new 
towns  arose  which  had  no  representation.  Old  boroughs 
lost  population  heavily.  Old  Sarum  with  no  electors,  Gal  ton 
with  seven,  and  Tavistock  with  ten,  returned  each  two  mem- 
bers, while  Manchester  and  Birmingham  had  none.  Ninety 
members  were  sent  by  forty-six  places  with  less  than  fifty 
electors  each.  Worse  even  than  this,  the  decline  in  popula- 
tion, combined  with  limited  rights  of  suffrage,  had  put  many 
boroughs  sending  members  to  the  house  of  commons  com- 
pletely into  the  hands  of  neighboring  great  landowners  who 
either  controlled  the  election  through  their  ownership,  the  so- 
called  pocket  boroughs,  or  found  it  easy  to  buy  the  required 
number  of  voters,  the  rotten  boroughs.1  The  duke  of  New- 
i  Cheyney,  Readings,  64S-646. 


436  THE  AGE  OF  REFORM 

castle  nominated  eleven  members  of  the  house  of  commons, 
Lord  Lonsdale  nine,  Lord  Fitzwilliam  eight.  Six  peers  to- 
gether sent  forty-five  members.  Nearly  half  the  membership 
of  the  house  represented  in  this  way  private  interests  rather 
than  a  public  constituency. 

Early  in  November,  1830,  after  the  parliamentary  election 
of  that  year,  the  same  Earl  Grey,  who  had  been  a  leader  in 
the  eighteenth-century  attempts,  expressed  in  debate  in  the 
house  of  lords  the  hope  that  this  reform  might  not  be  long 
delayed.  The  prime  minister,  the  duke  of  Wellington,  an- 
swered in  absurdly  extravagant  praise  of  conditions  as  they 
were,  saying  among  other  things  that  if  he  had  been  called 
upon  to  form  legislative  institutions  for  any  country  he 
could  not  hope  to  do  as  well  as  the  existing  institutions  of 
England,  "  for  the  nature  of  man  was  incapable  of  reaching 
such  excellence  at  once."  These  words  proved  the  spark 
which  fired  the  train  and  revealed  how  broadly  preparation 
had  been  made  in  the  public  mind  for  a  decided  change.  On 
the  fifteenth  of  November,  Wellington's  ministry  was  defeated 
in  the  house  of  commons  on  a  question  of  finance  and  re- 
signed. The  king  sent  for  Earl  Grey  who  formed  a  whig 
ministry  and  went  on  with  the  session  without  asking  for  a 
new  election.  The  house  of  commons  had  nominally  a  tory 
majority,  but  public  opinion  had  declared  itself  so  clearly 
for  reform  that  there  seemed  a  chance  of  securing  a  majority 
for  it  without  an  appeal  to  the  country. 

The  bill  was  introduced  on  the  first  of  March  by  Lord 
John  Russell,  who  for  twenty  years  had  advocated  a  measure 
of  the  kind  in  speeches  and  motions  in  the  house  of  commons. 
It  passed  its  first  and  second  readings,  but  on  the  second 
reading  the  majority  in  its  favor  was  only  one  in  a  vote  of 
over  six  hundred.  In  parliamentary  practice  a  small  ma- 
jority on  the  second  reading  is  considered  a  defeat.  The 
passing  of  the  second  reading  means  that  the  house  adopts 
the  principle  of  the  bill,  but  the  details  have  still  to  be  settled 
in  committee  of  the  whole,  and  experience  shows  that  more 


ELECTION  OF  1831  437 

members  are  ready  to  accept  the  general  principle  of  any 
measure  than  will  agree  together  on  all  the  details.  This 
proved  to  be  the  case  at  this  time,  and  on  the  nineteenth  of 
April  the  cabinet  was  defeated  by  a  majority  of  eight  on  an 
amendment  to  the  bill.  Then  the  ministry  appealed  to  the 
country.  Parliament  was  dissolved  and  a  new  election 
ordered,  which  was  held  with  electoral  reform  as  the  chief 
issue  of  the  campaign.  The  election  was  one  of  unusual 
excitement  and  of  clear  determination  on  the  part  of  the 
reformers.  Some  pocket  boroughs  even  were  carried  against 
their  owners,  and  a  great  majority  for  those  days  was  se- 
cured for  the  government.  So  quickly  was  all  this  done 
that  on  June  24  Lord  John  Russell  introduced  practically 
the  same  bill  again,  and  its  second  reading  was  carried  on 
July  8  by  a  majority  of  one  hundred  and  thirty-six,  and  on 
September  21  it  was  finally  passed  by  a  majority  of  one 
hundred  and  nine.  The  house  of  lords  was  naturally  op- 
posed to  a  measure  which  seemed  about  to  destroy  the 
political  influence  of  the  aristocracy,  but  the  reformers  made 
a  brilliant  defence,  and  it  was  only  after  one  of  the  ablest 
debates  in  the  history  of  the  house  that  the  bill  was  rejected 
by  forty-one  majority  in  a  vote  of  three  hundred  and  fifty- 
seven.  The  defeat  of  a  government  measure  in  the  house  of 
lords  does  not  call  for  the  resignation  of  the  ministry  and, 
sustained  by  a  vote  of  confidence  immediately  passed  in  the 
house  of  commons,  the  cabinet  decided  to  prorogue  parlia- 
ment in  order  that  a  new  session  might  allow  the  reintroduc- 
tion  of  the  bill. 

In  the  interval  between  the  two  sessions  the  public  excite- 
ment reached  the  highest  point  that  had  ever  attended  any 
question  before  parliament  or  perhaps  that  has  ever  been 
known  since  that  time.  All  measures  familiar  in  English 
and  American  politics  to  impress  public  opinion  upon  the 
legislature  were  employed,  monster  meetings,  impassioned 
speeches,  processions  and  petitions,  newspaper  articles  and 
pamphlets ;  in  places  there  was  even  rioting  by  the  more 


438  THE  AGE  OF  REFORM 

radical  supporters  of  the  bill  who  expected  larger  results 
from  it  than  it  really  produced.  The  house  of  lords  met  in 
the  new  session  under  no  misunderstanding  as  to  the  temper 
of  the  majority  of  the  nation. 

On  December  12  a  new  bill  was  introduced  considerably 
improved  by  the  experience  of  previous  debates,  and  after 
another  thorough  discussion  was  passed  by  the  commons  on 
March  23  and  sent  to  the  house  of  lords.  Everybody  knew 
that  now  the  real  battle  was  to  come,  and  the  pressure  on  the 
lords  was  tremendous.  It  was  generally  understood  that 
King  William  IV  had  agreed,  though  with  reluctance,  to 
create  a  number  of  whig  peers  large  enough  to  carry  the  bill 
through  the  house,  if  this  should  prove  to  be  the  only  way 
in  which  it  could  be  saved.  On  the  other  hand,  it  must  not  be 
forgotten  that  the  country  had  hardly  yet  recovered  a  re- 
form disposition  from  the  reaction  which  the  extravagant 
policies  of  the  French  revolutionists  had  caused,  that  their 
excesses  were  still  fresh  in  mind,  that  only  two  years  before 
there  had  been  another  outbreak  of  revolutions  on  the  con- 
tinent, and  that  this  measure  seemed  to  strike  at  the  very 
foundations  of  government  as  they  had  existed  for  centuries, 
a  belief  which  the  radical  supporters  of  the  reform  bill  did 
nothing  to  remove.  The  mind  of  a  conservative  aristocracy, 
naturally  timid  of  experimenting  with  the  unknown,  had 
some  defence  for  itself  on  this  occasion. 

Public  pressure  and  the  known  plans  of  the  government 
were,  however,  too  strong  for  many  minds  in  the  house, 
which  were  wavering  either  in  opinion  or  as  to  the  best  policy 
for  the  lords  to  follow.  When  the  vote  on  the  second  reading 
was  taken,  it  proved  that  seventeen  peers  had  changed  to  the 
affirmative,  that  some,  including  Wellington,  had  stayed 
away,  and  that  a  net  gain  had  been  made  from  among  the 
absentees  of  1831.  The  second  reading  was  passed  by  a 
majority  of  nine.  The  .fate  of  the  measure  was,  however, 
undecided  because  it  had  yet  to  undergo  the  dangers  of 
amendment  and  of  adverse  votes  in  committee  of  the  whole, 


COERCING  THE  LORDS  439 

and  in  reality  such  a  vote  was  carried  against  the  ministry 
on  May  7. 

It  was  now  evident  that  the  number  of  whigs  in  the  house 
of  lords  must  be  increased  to  a  working  majority  or  the  bill 
be  abandoned,  and  the  cabinet  asked  of  the  king  the  fulfill- 
ment of  his  promise  to  create  peers,  offering  him  the  alterna- 
tive of  their  resignation.  It  seems  clear  now  that  the  king 
had  never  agreed  to  increase  the  membership  of  the  house  of 
lords  by  so  large  a  number  as  the  ministers  thought  neces- 
sary. He  was  himself  conservatively  minded  and  somewhat 
afraid  of  the  reform,  though  on  the  whole  loyal  to  the  min- 
istry, as  his  constitutional  position  demanded.  When 
brought  face  to  face  with  the  necessity  of  swamping  the 
majority  in  the  house  of  lords  in  order  to  carry  the  bill,  he 
could  not  bring  himself  to  act  and  instead  accepted  the  resig- 
nation of  the  cabinet. 

It  then  became  the  practical  question  whether  the  tory 
party  in  support  of  the  action  of  the  king  could  form  a 
cabinet  which  would  be  able  to  carry  on  the  business  of  the 
country,  including  some  measure  of  electoral  reform  which 
it  was  now  clear  to  everybody  must  be  adopted.  The  duke 
of  Wellington  made  the  attempt  to  construct  the  ministry, 
but  Sir  Robert  Peel,  who  was  indispensable,  and  others  re- 
fused to  serve ;  the  house  of  commons  passed  a  vote  of  con- 
fidence in  Lord  Grey's  cabinet  by  a  large  majority;  and 
renewed  public  excitement  gave  warning  of  trouble.  After 
a  few  days  of  hard  effort,  Wellington  was  obliged  to  inform 
the  king  that  he  could  do  nothing  and  advised  him  to  recall 
Earl  Grey.  William  was  forced  to  yield,  though  yielding 
meant  agreeing  to  the  cabinet's  demands.  He  attempted  in 
vain  to  persuade  them  to  consent  to  important  modifications 
of  the  bill,  but  he  gave  them  his  promise  in  writing  to  create 
as  many  peers  as  might  be  necessary.  Then  of  his  own 
motion  he  took  a  further  step  of  more  doubtful  propriety 
constitutionally  which,  though  not  objected  to  at  that  time, 
certainly  would  be  today,  by  directing  his  private  secretary 


440  THE  AGE  OF  REFORM 

to  suggest  to  Wellington  and  certain  others  that  all  difficul- 
ties would  be  removed  by  their  absenting  themselves  from 
the  house  when  the  vote  took  place.  This  course  had  been 
already  resolved  upon  by  many  and  the  bill  was  finally  al- 
lowed to  pass  by  a  large  majority.2 

It  has  seemed  worth  while  to  relate  the  history  of  this 
episode  in  such  fulness  because  there  is  no  case  in  which 
are  illustrated  in  so  many  points  of  detail  the  practical 
workings  of  the  cabinet  system  of  government  by  a  respons- 
ible ministry,  which  is  the  especially  characteristic  result 
in  the  constitution  whose  historical  development  we  have  been 
following.  From  1832  to  the  period  of  stress  occasioned 
by  the  world  war,  the  operation  of  this  system  remained 
the  same  with  only  slight  modifications,  which  will  be  noticed 
later.  The  relation  to  one  another  of  three  of  the  great 
factors  in  the  government  is  clearly  brought  out  in  the  his- 
tory of  the  passage  of  the  reform  bill  and  that  of  the  fourth 
is  implied.  The  king,  the  lords,  and  the  cabinet  are  shown 
as  they  operate  together,  not  of  course  in  the  ordinary 
business  details  of  administration,  but  in  the  higher  deter- 
mination of  government  policy  and  the  foundation  of  all 
in  the  house  of  commons  is  indicated. 

The  king  has  ceremonial  and  social  functions  to  perform 
which  are  of  great  importance  in  an  old  society  which,  how- 
ever democratic  politically,  is  still  aristocratic  in  social  spirit, 
but  in  the  determination  of  government  policy  upon  any 
measure  his  position  is  fairly  shown  in  the  relation  of  William 
IV  to  the  passage  of  the  reform  bill.  He  strongly  disliked 
some  details  of  the  measure  and  repeatedly  tried  to  persuade 
the  cabinet  to  change  them  without  success.  The  king  can- 
not insist  that  the  ministry  change  the  details  of  a  measure 
to  make  it  accord  more  nearly  with  his  own  views.  He  may 
present  his  views  to  the  cabinet,  either  orally  through  some 
member  or  in  writing,  and  urge  their  acceptance,  and  they 
will  always  be  considered  respectfully  and  fully.  In  matters 
2  A.  and  S.,  514-5^6;  Robertson,  Statutes,  327-346. 


THE  KING'S  ACTION  441 

of  form,  which  may  indirectly  involve  matters  of  substance, 
as  in  the  famous  case  of  the  note  of  Lord  Palmerston's  gov- 
ernment to  Washington  on  the  Trent  affair  in  our  Civil 
War,  which  was  modified  at  the  suggestion  of  Queen  Victoria, 
or  in  unessential  details,  the  advice  of  the  sovereign  may 
often  be  accepted,  but  if  the  cabinet  decides  against  his  views 
he  must  yield. 

In  William  IV's  time  when  the  ministry  asked  of  the  king 
an  act  to  which  he  was  strongly  opposed,  in  order  to  change 
the  majority  in  the  house  of  lords,  it  was  thought  his  right 
to  accept  their  resignations  and  to  try  the  experiment  of 
forming  a  government  which  would  not  require  such  an  act 
of  him.  But  when  the  leaders  of  the  king's  way  of  thinking, 
from  whom  the  new  cabinet  must  be  made,  came  to  the  con- 
clusion that  no  government  could  be  formed  which  could  carry 
on  the  business  of  the  country,  then  the  king  had  to  abandon 
the  attempt.  It  is  hardly  likely  that  any  student  of  the 
British  constitution  would  deny  the  king  the  same  right 
at  the  present  day,  but  the  elimination  of  the  king  from 
the  practical  government  of  the  country  in  thought  and 
habit  has  gone  so  far  since  1832,  that  it  is  exceedingly 
doubtful  if  any  sovereign  will  ever  try  the  experiment  again. 
The  attempt  would  be  from  the  start  so  hopeless  and  public 
excitement  so  great,  for  it  would  only  be  made  on  a  question 
of  great  importance,  in  which  the  nation  would  be  intensely 
interested,  that  the  king  would  probably  always  yield  rather 
than  take  an  appeal  against  the  cabinet. 

It  may  be  said  without  qualification  that  William's  conduct 
in  allowing  his  view  about  the  reform  bill  to  become  known 
would  be  thought  improper  in  a  sovereign  of  today.  It  must 
be  noticed,  however,  that  his  act  in  sending  a  letter  to  opposi- 
tion members  of  the  house  of  lords  differed  very  decidedly 
from  the  similar  act  of  George  III  against  Fox's  India  bill 
in  1783,  in  that  it  was  in  support  of  the  policy  of  his  govern- 
ment while  George's  was  an  attempt  to  defeat  the  cabinet. 
Theoretically    the    king   is    supposed    to    have    no    political 


442  THE  AGE  OF  REFORM 

opinion  but  that  of  his  ministers,  and  it  would  be  a  serious 
breach  of  etiquette  for  an  English  political  speaker  to  quote 
the  king  in  support  of  his  argument.  This  principle  is  very 
correctly  stated  in  a  letter  of  Edward  VII's  which  has  been 
published.  When  he  was  asked  in  writing  as  to  the  truth 
of  a  rumor  that  he  was  opposed  to  any  change  in  the  policy 
of  free  trade,  he  replied :  "  The  king  never  expresses  any 
opinion  on  political  matters  except  on  the  advice  of  his 
responsible  ministers,  and  therefore  the  statement  must  be 
inaccurate." 

The  only  political  function  which  the  king  can  perform  is 
to  support  his  cabinet  loyally  and  completely  in  such  ways 
as  are  possible  to  him,  which  are  not  many.  The  three  rights 
which,  fifty  years  ago,  Bagehot  attributed  to  the  crown, 
"  the  right  to  be  consulted,  the  right  to  encourage,  the  right 
to  warn,"  amount  to  no  more  than  this,  though  they  seem 
to  allow  some  room  to  influence  actual  government.  Much 
was  said  during  the  reign  of  Edward  VII  of  the  activity  of 
the  king  in  the  field  of  foreign  relations,  and  it  is  quite  pos- 
sible that  he  may  often  serve  as  a  particularly  useful  ambas- 
sador because  of  the  peculiar  access  he  may  have  to  the  inner 
circles  of  a  foreign  government.  As  Mr.  Gladstone  has  said: 
"  personal  and  domestic  relations  with  the  ruling  families 
abroad  give  openings,  in  delicate  cases,  for  saying  more,  and 
saying  it  at  once  more  gently  and  more  efficaciously  than 
could  be  ventured  in  the  more  formal  correspondence  and 
ruder  contacts  of  governments."  It  is  certain,  however,  that 
in  such  a  mission  the  king  could  take  no  position  which  had 
not  been  previously  agreed  upon  or  which  was  not  in  har- 
mony with  the  policy  of  his  government. 

The  last  work  which  was  necessary  in  bringing  the  nominal 
sovereign  into  so  complete  harmony  with  the  real  sovereign 
in  the  practical  carrying  on  of  government  was  done  by 
Queen  Victoria  in  the  course  of  her  long  reign.  Her  letters, 
which  have  been  published,  reveal  in  how  many  ways  and  with 
what  sympathetic  understanding  this  work  was  carried  on, 


THE  FUNCTION  OF  THE  LORDS  443 

and  Queen  Victoria's  personal  place  in  the  future  history  of 
England  may  very  likely  be  determined  more  by  her  assist- 
ance in  this  development  than  by  anything  else  she  did.  So 
entirely  is  the  British  sovereign  at  present  in  harmony  with 
the  constitution  that  it  is  very  possible  that  the  question 
of  the  government's  remaining  in  name  a  monarchy  or  being 
changed  in  form  into  a  republic  will  be  determined  by  other 
than  political  considerations. 

More  decided  and  dramatic  changes  have  taken  place  in 
the  relation  of  the  house  of  lords  to  the  other  factors  in 
government  than  in  the  case  of  the  kingship,  and  yet  all  the 
changes  which  have  occurred  were  virtually  involved  in  the 
position  of  the  house  as  it  -was  revealed  in  the  struggle  over 
the  reform  bill.  That  struggle  clearly  showed  that  the  lords 
might  safely  oppose  the  popular  will,  as  expressed  by  the 
house  of  commons,  to  a  certain  point  but  not  beyond  it.  A 
first  rejection  of  any  bill  was  clearly  their  constitutional 
right,  an  appeal  to  the  people  with  the  question :  Is  this  your 
deliberate  and  mature  desire?  A  second  rejection,  after  a 
general  election  upon  the  specific  question  had  declared  the 
popular  will  unmistakably,  or  after  it  had  been  clearly 
declared  in  any  way,  would  be  of  more  doubtful  propriety ; 
and  a  third  rejection  after  continued  evidence  of  a  national 
determination  would  certainly  have  endangered  their  his- 
torical position.  What  followed,  the  determination  to  coerce 
the  house  by  the  creation  of  peers,  the  failure  of  the  king's 
attempt  to  avoid  the  necessity,  and  the  final  acceptance  of 
the  bill,  as  the  only  way  of  escape,  revealed  for  the  first  time 
the  fact  that  the  long  progress  towards  the  realization  of  the 
sovereignty  of  the  people  in  government  had  overcome  the 
aristocracy  as  well  as  the  king. 

A  general  understanding  of  this  fact  was  however  only 
slowly  reached.  A  few  years  later,  on  the  repeal  of  the 
corn  laws,  the  protectionist  legislation  in  the  interest  of 
the  landlord  class,  the  house  of  lords  was  strong^  tempted 
to  resist  the  reform.     Only  the  great  influence  of  the  duke  of 


444  THE  AGE  OF  REFORM 

Wellington,  who  explained  to  the  house  clearly  and  for  the 
first  time  the  powerlessness  to  which  it  had  been  reduced  in 
the  constitution,  prevented  a  repetition  of  the  experiences 
of  the  reform  bill.  From  that  time  on  to  near  the  end  of 
the  centurj',  it  was  the  custom  to  say  that  the  house  of  lords 
served  the  purpose  of  a  brake  on  the  wheel  of  too  rapid 
advance,  served  to  make  sure  that  a  reform  was  really  de- 
manded by  the  mature  judgment  of  the  country.  Before 
the  close  of  Victoria's  reign,  however,  the  complaint  became 
very  frequent  that  the  brake  was  applied  onhT  to  the  measures 
of  a  liberal  ministry,  never  to  those  sent  up  by  a  conservative 
cabinet.  Although  the  liberals  during  these  years  had  raised 
more  men  to  the  peerage  than  the  conservatives  had  done,  it 
had  yet  been  found  exceedingly  difficult  to  keep  a  family 
liberal  in  the  atmosphere  of  the  lords.  The  earl  of  Rose- 
bery  a  few  years  ago  declared  in  a  speech  that  in  his  expe- 
rience a"s  liberal  leader  of  the  house,  since  the  disruption  of 
the  party  caused  by  the  home  rule  bill,  he  had  never  been 
able  to  count  wTith  certain  confidence  on  more  than  thirty 
votes  in  a  membership  of  over  six  hundred. 

It  was  a  growing  sense  of  the  unfairness  of  this  situation 
and  of  the  danger  of  a  permanent  rejection  of  some  impor- 
tant measure  with  its  probable  effects  in  public  excitement, 
enforced  and  deepened  by  recent  experiences  in  the  adoption 
of  tax  reform  measures,  that  led  to  the  passage  of  the  parlia- 
ment bill  of  1911.  If  we  regard  the  English  constitution 
with  special  reference  to  the  character  of  its  long  historical 
development,  there  is  nothing  revolutionary  about  this  meas- 
ure. It  takes  away  the  power  of  the  house  of  lords  to  post- 
pone for  more  than  two  years  the  enactment  of  a  bill  passed 
by  the  house  of  commons  which  it  has  been  made  clearly 
manifest  during  that  time  that  the  public  opinion  of  the 
nation  demands.  This  is  doing  no  more  than  to  describe 
in  statute  form,  with  the  time  of  delay  definitely  measured 
out,  the  position  which  the  passage  of  the  reform  bill  of  1832 
had  shown  was  really  that  of  the  lords  in  the  constitution, 


THE  CABINET  IN  OPERATION  445 

and  this  position  was  clearly  the  logical  result  of  the  previous 
development.  The  power  of  the  lords  was  as  much  involved 
in  the  seventeenth-century  struggle  with  Charles  I  and  James 
II  as  was  that  of  the  king.  The  final  triumph  of  the  sover- 
eignty of  the  people  demanded  as  complete  and  cordial  a 
recognition  of  the  results  from  the  house  of  lords  as  from 
the  crown. 

The  position  of  the  cabinet  during  the  nineteenth  century 
both  in  ordinary  action  and  in  times  of  crisis  is  illustrated 
with  equal  fulness  in  the  passage  of  the  reform  bill.  This 
date,  1832,  is  the  earliest  to  which  we  can  assign  with  cer- 
tainty the  completion  of  the  cabinet  system  in  all  its  working 
details,  though  it  is  very  likely  true  that  a  somewhat  earlier 
test,  had  it  been  applied,  would  have  found  its  practical 
operation  as  fully  understood.  The  reform  bill  was  a  gov- 
ernment measure.  That  is,  it  was  framed  by  the  ministry, 
introduced  by  one  of  its  members,  and  remained  in  his  charge 
during  its  passage.  If  it  should  be  defeated  in  the  house  of 
commons,  or  if  an  amendment  upon  a  vital  point  should 
be  carried  against  the  ministry,  then  the  cabinet  must  either 
resign  or  appeal  to  the  country  for  its  support  upon  the 
issue  by  dissolving  parliament  and  bringing  on  a  general 
election.  A  new  election  can  be  the  cabinet's  choice  only 
under  a  heavy  responsibility.  An  appeal  to  the  country 
upon  insufficient  grounds,  without  some  evidence  of  general 
support,  or  merely  to  save  the  ministry  time,  would  be  sure 
to  be  followed  in  the  election  by  severe  condemnation,  but  in 
this  case  the  government  had  every  reason  to  believe  that  the 
country  was  behind  it,  and  the  event  proved  the  opinion 
correct.  A  greatly  increased  majority  for  the  cabinet  was 
returned  by  the  electors,  and  the  vote  was  considered  a  man- 
date from  the  country  to  go  on  with  the  measure. 

On  the  defeat  of  the  second  bill  in  the  house  of  lords, 
the  case  was  different.  An  election  had  lately  been  held 
and  the  government  had  still  a  largo  majority  in  the  com- 
mons.    An  appeal  to  the  country  was  unnecessary  and  would 


446  THE  AGE  OF  REFORM 

have  been  improper.  Instead  the  cabinet  prorogued  parlia- 
ment to  permit  a  reintroduction  of  the  bill  in  a  new  session. 
When  the  government  was  again  defeated  on  an  amendment 
in  the  lords,  matters  came  to  a  crisis  which  illustrates  the 
action  of  the  cabinet  at  such  a  time.  In  asking  the  king  to 
take  a  step,  the  creation  of  peers,  which  it  was  known  that 
he  was  very  reluctant  to  take,  the  prime  minister  offered 
him  at  the  same  time  the  alternative  of  the  cabinet's  resigna- 
tion. At  that  time,  whatever  might  be  done  today,  the  king 
chose  that  alternative,  but  while  the  attempt  to  form  a 
cabinet  of  the  opposite  party  was  made,  the  old  cabinet  re- 
mained in  office  and  carried  on  the  routine  business  of  the 
government.  When  the  king  was  obliged  to  admit  that  his 
attempt  had  failed,  it  resumed  its  position  as  cabinet  with 
reference  to  parliament,  but  now  with  the  certainty  that  its 
advice  would  be  accepted  by  the  king.  The  crisis  reveals 
also  what  it  is  in  the  British  system  which  keeps  a  cabinet  in 
power  or  turns  it  out  of  office.  It  is  its  ability  or  inability 
at  any  given  time  to  determine  and  direct  the  policy  of  the 
government.  If  the  house  of  commons  will  do  business  with 
the  cabinet,  then  it  goes  on ;  if  the  house  of  commons  will 
not  do  business  with  it,  no  other  power  can  maintain  it  in 
office.  If  a  ministry  should  attempt  to  retain  power  in  the 
teeth  of  a  hostile  house  of  commons,  the  business  of  govern- 
ment would  shortly  fall  into  chaos  and  the  attempt  would 
mean  revolution.  But  with  the  house  of  commons  and  the 
opinion  of  the  nation  against  it,  no  ministry  would  ever  make 
the  experiment.  This  is  the  whole  theory  of  government  by 
a  responsible  ministry.  The  house  of  commons  reflects  the 
opinion  of  the  people  in  regard  to  the  policy  proposed  by  the 
government  and  its  judgment,  which  is  the  judgment  of  the 
nation,  is  final  in  the  question  before  it. 

The  constitutional  position  of  the  house  of  commons  has 
been  already  clearly  indicated.  It  supports  the  ministry  so 
long  as  the  policy  of  the  ministry  has  the  support  of  public 
opinion.     In  times  of  crisis  it  may  hold  up  the  hands  of 


THE  HOUSE  OF  COMMONS  447 

the  cabinet  by  a  direct  vote  of  confidence,  which  is  equivalent 
to  a  formal  declaration  to  all  opponents  that  the  country  is 
behind  the  government's  policy.  If  public  opinion  turns 
against  that  policy,  corresponding  changes  will  take  place 
in  the  house  of  commons  and  then  in  a  crisis  conceivably  the 
house  may  adopt  a  vote  of  want  of  confidence  which  is  a 
formal  declaration  to  the  cabinet  that  it  has  lost  the  support 
of  the  nation  and  should  resign.  If  the  ministry  should 
prove  unwilling  to  resign,  or  an  attempt  be  made  to  bring 
into  office  a  ministry  which  does  not  have  the  sanction  of  the 
people,  the  house  of  commons  would  refuse  to  allow  any 
items  of  its  policy  to  be  enacted  into  law,  and  it  would  be 
unable  to  go  on.  It  is  also  of  course  the  business  of  the 
house  of  commons  to  discuss  the  measures  proposed  by  the 
government  and  to  amend  and  improve  them,  but  this  is  a 
duty  which  it  still  shares  with  the  house  of  lords. 

The  results  of  the  reform  bill  of  1832  disappointed  both 
its  friends  and  its  opponents.  It  was  not  followed  by  the 
consequences  which  had  been  hoped  or  feared.  Most  pocket 
and  rotten  boroughs  had  been  disfranchised  and  seats  had 
been  given  new  centers  of  population,  and  these  were  changes 
which  had  been  desired.  Fifty-six  boroughs  were  dis- 
franchised and  thirty  lost  a  member  each.  Twenty-two 
large  towns,  including  some  London  districts,  were  given 
two  members  each  and  twenty  others  one.  Sixty-five  seats 
were  added  to  the  county  representation.  As  to  the  right  of 
voting,  a  common  borough  franchise  was  created  for  all  occu- 
piers of  premises  of  the  annual  value  of  ten  pounds,  and  in 
the  counties  the  old  forty  shilling  freeholders  were  reinforced 
by  the  addition  of  copyholders  and  leaseholders  and  of  ten- 
ants at  will  paying  fifty  pounds  rent  per  annum.  But 
though  the  number  of  voters  had  been  increased  by  about 
fifty  per  cent,  no  important  change  was  manifest  in  the  char- 
acter of  the  membership  of  the  house  of  commons,  and  no 
evident  progress  had  been  made  towards  democracy.  Cor- 
rupt voting  was  not  entirely  extinguished,  difficult  formalities 


448  THE  AGE  OF  REFORM 

in  the  process  of  registration  kept  down  the  number  of  voters, 
and  the  natural  local  influence  of  family  and  property  com- 
bined with  all  the  rest  to  reduce  the  significance  of  the  reform. 
Its  permanent  importance  proved  in  the  end  to  be  less  in 
the  immediate  change  it  made  than  in  introducing  the  possi- 
bility of  change.  It  was  the  first  giving  way  of  the  old 
aristocratic  system  in  any  material  matter  and  it  opened 
the  door  to  all  that  followed.  The  radical  supporters  of  the 
bill  were  not  satisfied  with  the  concessions  which  that  measure 
secured  and  it  was  not  long  before  agitation  began  for  sup- 
plementary reforms.  The  agitators  had  much  material  to 
build  with  in  the  rather  general  discontent  of  the  working 
class,  discontent  which  was  quite  as  much  due  to  economic  as 
to  political  conditions. 

The  agitation,  which  reached  its  height  in  1839,  is  known 
in  history  as  the  chartist  movement  from  the  so-called  Peo- 
ple's Charter  in  which  the  radical  demands  were  stated.3 
These  were  six  in  number :  universal  manhood  suffrage ;  vote 
by  ballot,  to  prevent  intimidation ;  annually  elected  parlia- 
ments, to  maintain  the  responsibility  of  members ;  payment 
of  members  of  the  house  of  commons,  to  make  possible  the 
election  of  poor  men ;  the  abolition  of  the  property  qualifica- 
tion for  membership  in  the  house,  for  the  same  reason ;  and 
the  formation  of  electoral  districts  of  equal  population. 

The  movement  was  a  failure.  None  of  the  demands  set 
forth  in  the  charter  was  granted  by  parliament,  but  the 
agitation  did  not  cease  in  other  ways.  The  democratic 
cause  won  gradually  more  and  more  support  among  the 
classes  which  controlled  parliament,  and  the  programme  of 
the  People's  Charter  may  be  taken  as  an  epitome  of  the  prog- 
ress since  that  day.  Three  of  the  demands,  the  second, 
fourth  and  fifth  as  given  above,  have  been  fully  secured;  and 
before  the  close  of  the  century,  the  first  also,  with  very 
slight  exceptions  which  have  now  been  swept  away  and  the 
limitation   implied   in   the  word   manhood   dropped    as   well. 

*Cheyney,  Readings,  701-712. 


MANY  CHANGES  449 

The  sixth  has  been  fully  obtained  in  principle  and  in  practice- 
as  nearly  as  some  peculiar  difficulties  of  the  situation  allow. 
The  third  has  not  been  secured  in  form,  but  the  possible  life 
of  a  parliament  has  been  reduced  to  five  years,  and  the  re- 
sponsibility of  members  to  their  constituents  more  indirectly 
but  sufficiently  secured.  The  leaders  of  the  movement  of 
1839  would  be  astonished  at  the  England  of  today,  if  they 
could  return  to  it,  and  would  be  obliged  to  say  that,  accord- 
to  the  standards  which  they  proclaimed,  it  is  a  democracy, 
and  that  in  some  'things  which  they  had  at  heart,  the  legal 
protection  of  the  workingman  for  instance,  progress  has 
gone  far  beyond  their  wildest  dreams. 

The  interval  of  thirty-five  years  between  the  first  and  sec- 
ond reform  bills  was  a  period  of  many  changes.  A  good 
proportion  of  these  were  economic  or  social  in  character  and 
not  strictly  constitutional,  but  the  more  important  may  be 
named  as  indicating  the  general  spirit  of  the  epoch.  Colonial 
slavery  was  abolished,  with  compensation  to  owners,  in  1833. 
In  the  same  year  a  beginning  was  made  in  legislation  in 
favor  of  national  education.  The  beginning  was  difficult 
and  small,  because  education  wTas  in  the  hands  of  the  various 
religious  bodies  and  jealously  guarded.  It  consisted  merely 
in  a  grant  of  £20,000  to  aid  school  building,  but  from  this 
beginning  was  framed  before  the  end  of  the  century  a  system 
of  national  schools  and  popular  education  revolutionary  in 
comparison  with  anything  that  went  before  it.  Factory 
legislation,  regulating  hours  and  conditions  of  labor,  had 
already  begun  and  was  now  extended,  leading  on  by  degrees 
to  the  present  extensive  system  of  regulation  and  protection. 
A  new  poor  law  was  adopted  in  1834.  The  navigation  laws 
were  repealed  in  1849,  and  the  corn  laws  and  protective 
tariffs  before  1850.  Penny  postage  and  the  postage  stamp 
were  introduced  in  1839,  and  the  postal  savings  bank  in 
1861.  Much  of  parliament's  time  was  occupied  by  Irish 
troubles  and  Irish  agitation,  without  significant  result. 

Of  changes  between  1832  and  1910  that  are  to  be  consid- 


450  THE  AGE  OF  REFORM 

ered  constitutional,  the  most  extensive  and  far-reaching  after 
parliamentary  reform  arc  those  affecting  local  government, 
urban  and  rural.4  Local  government  as  it  had  passed  into 
modern  times  from  the  Tudor  ages  was  in  theory  and  form 
self-government.  It  was  in  fact  local  self-government  if  by 
that  term  is  meant  government  free  from  the  interference  of 
the  central  power.  If,  however,  the  term  is  taken  to  imply 
the  existence  of  a  democratic  community  government,  then  it 
can  be  applied  to  the  actual  situation  only  in  theory,  not  in 
fact.  The  accumulation  of  many  powers  in  the  hands  of  the 
justices  of  the  peace,  appointive  from  the  local  gentry,  the 
requirement  by  law  of  a  property  qualification  for  all  the 
important  officers  who  controlled  the  counties  and  super- 
vised the  parishes,  and  the  outcome  of  seventeenth  century 
history  which  restored  the  squirearchy  to  as  great  a  practical 
power  in  local  affairs  as  the  medieval  lords  of  manors  had 
possessed,  all  combined  to  make  the  local  government  of  the 
eighteenth  century  and  down  to  1888  thoroughly  aristo- 
cratic. The  government  of  the  boroughs,  which  were  out- 
side the  counties,  shows  similar  tendencies.  The  only  in- 
terruption in  borough  history  after  the  middle  ages  came 
from  the  Quo  warranto  proceedings  of  the  last  two  Stuart 
kings,  and  the  only  final  effect  of  this  interruption  was  to 
hasten  the  process  naturally  going  on  which  was  putting  the 
control  of  their  government  more  and  more  into  the  hands 
of  a  close  corporation.  In  both  counties  and  boroughs  local 
government  as  inherited  by  the  nineteenth  century  was  dis- 
tinctly undemocratic. 

The  change  was  initiated  by  the  success  of  parliamentary 
reform,  and  first  in  the  boroughs.  The  effect  of  doing  away 
with  the  medieval  qualifications  for  parliamentary  suffrage 
was  to  raise  the  question  of  the  suitablity  of  the  medieval 
constitution  for  other  borough  functions.  Soon  after  the 
reform  bill  of  1832  a  royal  commission  of  inquiry  into  bor- 
ough governments  was  appointed,  and  their  report  was  fol- 
*  Robertson,  Statutes,  432-437,  first  edition. 


LOCAL  GOVERNMENT  451 

lowed  in  1835  by  the  municipal  corporations  act  —  the  first 
step  in  the  process  of  reform.  Fifty  years  later  the  third 
parliamentary  reform  bill  of  1884  had  a  similar  effect  on 
rural  local  government.  By  the  extension  of  the  borough 
franchise  to  the  counties  it  made  the  old  conditions  seem 
as  out  of  place  as  the  first  reform  bill  had  in  the  boroughs. 
In  the  meantime,  a  great  variety  of  individual  acts  had  been 
passed  making  single  changes,  conferring  new  powers  or 
creating  new  offices  or  new  local  areas.  The  result  was  a 
confused  mass  of  local  authorities  and  districts,  overlapping 
one  another  and  making  a  "jungle  of  jurisdictions,"  a 
"  chaos  of  authorities."  The  process  of  bringing  this  chaos 
into  the  present  form  has  been  largely  one  of  simplification, 
though  it  has  also  been  one  of  creation  and  extension.  For 
our  purpose  there  is  no  object  in  following  the  hundreds  of 
particular  steps  by  which  the  present  result  has  been  reached ; 
the  result  itself  we  need  to  study  briefly. 

To  the  American  who  compares  in  detail  the  English  sys- 
tem of  local  government  with  his  own,  it  still  seems  to  lack 
simplicity,  and  he  finds  it  difficult  to  form  a  picture  of  it 
which  is  at  the  same  time  clear  and  distinct.  The  details 
tend  to  prevent  a  general  view.  Persistence  in  the  attempt 
leads  to  the  conclusion  that  the  similarities  in  the  local  gov- 
ernment systems  of  the  two  nations  are  on  the  whole  more 
numerous  than  the  differences,  though  these  are  striking. 
Perhaps  we  may  say  that  the  English  system  strikes  us  as 
being  very  much  the  result  which  we  should  get  if  we  super- 
imposed the  local  government  of  the  states  in  which  the 
county  is  the  local  unit  upon  that  of  the  states  in  which  the 
town  is  the  local  unit,  making  a  not  entirely  perfect  divi- 
sion between  the  two  units  of  the  functions  which  would  thus 
be  duplicated.  In  England  there  are,  however,  three  local 
units  one  above  the  other:  the  county  and  county  boroughs, 
which  are  divided  into  boroughs  and  urban  and  rural  dis- 
tricts, these  last  being  in  turn  subdivided  into  parishes.  In 
this   scheme  the  position   of  London  is   somewhat  peculiar. 


452  THE  AGE  OF  REFORM 

The  government  of  the  city,  technically  so-called,  the  square 
mile  extending  north  from  the  Thames  between  the  Tower 
and  Temple  Bar,  has  not  been  affected  by  the  changes  of 
the  century,  and  it  remains  outside  the  jurisdiction  of  the 
London  county  council  under  its  own  lord  mayor.  The 
remainder  of  greater  London,  as  one  might  call  it,  has  been 
organized  as  a  separate  county  under  the  London  county 
council,  which  is  formed  on  the  same  model  as  the  other 
county  councils  but  with  somewhat  more  extensive  powers. 
This  county  of  London  is  divided,  like  the  county  boroughs, 
into  boroughs,  of  which  there  are  twenty-eight. 

The  county  in  this  scheme  of  local  self-government  is  not 
the  historical  county,  though  actually  it  is  so  in  six  cases, 
and  does  not  vary  greatly  in  the  others,  but  the  "  admin- 
istrative "  county,  of  which  sixty-two  were  formed  from 
the  fifty-two  historical  counties.  The  county  boroughs  were 
the  towns  which  had  anciently  been  made  counties  or  which 
had,  or  should  attain,  a  population  of  50,000.  Of  these, 
sixty  were  provided  for  in  the  original  bill,  and  there  are 
nowT  over  seventy.  They  are  independent  of  the  counties 
but  their  position  and  government  is  practically  the  same. 
In  all  these  the  governing  body  is  a  council  of  elected  coun- 
cillors, and  of  additional  aldermen  elected  for  a  longer  term 
by  the  councillors.  In  the  intermediate  division,  the  bor- 
oughs and  districts,  the  government  is  also  conducted  by 
an  elected  council,  though  without  aldermen.  In  the 
boroughs  this  council  serves  for  all  borough  purposes.  The 
larger  parishes  have  also  councils,  and  in  the  smaller  busi- 
ness is  done  by  an  assembly  of  all  the  voters,  as  in  the  New 
England  town  meeting. 

To  the  county  councils  were  transferred  nearly  all  the  ad- 
ministrative duties  which  had  accumulated  in  the  hands  of 
the  justices  of  the  peace,  leaving  to  these  their  judicial  and 
a  few  other  functions.  Upon  the  district  councils  rests  the 
chief  responsibility  for  local  sanitary  matters  and  the  care 
of  all  roads  not  main  highways,  which  are  under  control  of 


CENTRAL  SUPERVISION  453 

the  counties.  In  the  parishes  civil  business  has  been  sep- 
arated from  ecclesiastical,  and  the  latter  is  in  the  hands 
of  the  vestries.  In  general  the  matters  which  fall  naturally 
to  local  control  are  shared  in  alike  by  all  three  local  units 
in  diminishing  spheres  of  authority  and  responsibility  from 
top  to  bottom.  No  principle  of  division  between  the  local 
units  seems  clear  to  one  strange  to  the  actual  operation  of 
the  system,  and  in  some  cases,  like  care  of  the  poor,  the 
place  of  a  principle  seems  to  be  taken  by  tradition  from  the 
past.  The  chief  matters  under  local  control  are:  local 
finance,  the  lower  grades  of  education,  sanitation,  police 
(shared  with  the  justices  of  the  peace),  poor  relief  and 
asylums,  and  roads  and  bridges.  The  larger  part  of  the 
actual  work  of  government  is  done  by  committees,  upon 
which  persons  may  be  asked  to  serve  who  are  not 
members  of  the  councils.  The  changes  which  have  been 
made  have  not  taken  the  control  of  government  out  of 
the  hands  of  the  upper  and  upper  middle  classes,  but  there 
is  general  satisfaction  with  the  results,  and  a  change  in  this 
respect  is  always  within  the  power  of  the  body  of  voters. 

To  the  American  the  least  familiar  feature  of  the  English 
system  is  the  supervision  which  is  exercised  over  local  gov- 
ernment by  authorities  of  the  national  government.  We 
need  to  remember  here  as  elsewhere  that  the  English  central 
government  has  to  perform  the  functions  both  of  our  na- 
tional and  our  state  governments.  We  have  I  believe,  how- 
ever, nowhere  anything  corresponding  to  the  supervision 
exercised  over  local  government  by  certain  of  the  English 
central  administrative  departments.  There  are  five  of 
these,  each  giving  its  head  cabinet  rank.  The  home  office 
supervises  local  police  and  a  part  of  the  work  of  local  sani- 
tation, with  a  few  other  things ;  the  local  government  board 
has  a  great  variety  of  duties,  including  care  of  the  poor, 
sanitation  and  local  finance ;  the  boards  of  education,  trade 
and  agriculture  supervise  the  interests  indicated  by  their 
names.     These  central  departments  have  the  power  of  issu- 


454  THE  AGE  OF  REFORM 

ing  orders  of  a  legislative  character ;  they  have  a  right  of 
veto  upon  many  local  proposals;  they  act  through  a  some- 
what elaborate  system  of  inspectors ;  and  one  of  their  chief 
functions  is  to  furnish  expert  advice  and  assistance  in  local 
enterprises.  As  the  staff  in  these  offices  is  a  permanent  one, 
and  as  a  tendency  has  been  detected  on  the  part  of  the  local 
authorities  to  rely  more  and  more  on  their  guidance,  the 
fear  has  been  expressed  of  the  growth  of  central  bureau- 
cratic authority  as  a  result. 

It  is  hardly  possible  to  say  that  the  reforms  in  the  law 
and  in  judicial  institutions  which  followed  1832  are  of  less 
value  to  the  individual  than  those  in  local  government, 
though  they  are  less  conspicuous.5  In  1836  changes  were 
made  in  criminal  trials  by  which  the  accused  was  given  the 
right  to  counsel  and  to  a  more  full  knowledge  of  the  evidence 
against  him,  and  in  1837  further  advance  was  made  in  limit- 
ing the  number  of  capital  crimes.  Following  these  acts  a 
long  series  of  statutes  has  been  passed  affecting  both  the  con- 
tent of  the  criminal  law  and  procedure  in  trials  in  the  interest 
of  humanity  and  impartial  justice.  In  1907  the  court  of 
criminal  appeal  was  established  and  very  full  rights  of  ap- 
peal allowed.  In  the  field  of  civil  law  the  greatest  need  of 
reform  was  felt  in  the  cumbrous  and  expensive  procedure 
which  had  been  inherited  from  medieval  times.  In  1832 
procedure  was  slightly  simplified  and  was  made  uniform  in 
all  three  common  law  courts.  Other  reforms  followed,  espe- 
cially in  1852  when  two  statutes  were  adopted  by  which  ex- 
tensive changes  were  made  in  procedure  and  in  the  staffs  of 
the  common  law  courts.  Serious  reforms  in  the  chancery 
system  began  about  this  time,  consolidating  the  courts,  sim- 
plifying procedure,  and  tending  to  do  away  with  the  conflict 
between  equity  and  common  law. 

These  various  streams  all  contributed  to  the  series  of 
judicature  acts  of  1873  and  following  years  down  to  1910, 
by  which  the  whole  judicial  system  has  been  reconstructed 
s  Robertson,  Statutes,  437-142,  first  edition. 


PRESENT  DAY  LAW  COURTS  455 

in  external  organization  and  in  much  of  its  inner  content.6 
All  the  national  courts  have  been  brought  into  one  "  supreme 
court  of  judicature"  which  is  generic  in  character,  existing 
only  in  its  two  branches,  the  court  of  appeal  and  the  high 
court  of  justice;  the  latter  also  exists  only  in  its  three  "di- 
visions," the  king's  bench,  the  chancery,  and  the  probate, 
divorce,  and  admiralty  court.  The  names  of  the  two  latter 
indicate  their  character,  and  in  the  king's  bench  division 
the  old  common  law  courts  have  been  consolidated,  exchequer 
and  common  pleas  courts  disappearing.  A  part  of  the 
business  of  the  high  court  is  also  done  in  the  assize  courts 
on  circuit,  the  modern  form  of  the  old  itinerant  justice  sys- 
tem. The  operation  of  the  divisions  of  the  high  court  has 
been  made  as  uniform  as  possible  both  in  procedure  and  reme- 
dies, common  law  and  equity  being  fused,  but  in  business  they 
remain  distinct.  From  the  decisions  of  the  high  court  a-n 
appeal  lies  to  the  court  of  appeal,  and  from  that  to  the 
house  of  lords  as  a  supreme  court.  Local  justice  in  civil 
cases  has  also  been  provided  for  by  a  division  of  the  country 
into  about  500  districts  grouped  in  circuits,  first  made  in 
1846,  and  called  by  the  historical  name  of  county  courts, 
though  they  have  no  connection,  historical  or  geographical, 
with  the  older  system.  From  nearly  all  their  judgments 
an  appeal  may  be  taken  to  the  high  court  and  carried  on  df 
desired  to  the  house  of  lords.  They  have  proved  very  popu- 
lar in  cases  of  minor  importance,  and  their  jurisdiction  has 
been  enlarged  in  the  present  century.  The  courts  of  the 
justices  of  the  peace,  as  local  criminal  and  police  courts, 
still  continue  in  petty  and  quarter  sessions. 

Little  more  need  be  said  of  the  authority  of  the  crown 
during  this  period  than  has  already  been  said.  For  a  long 
time  it  was  thought  that  William  IV  had  given  in  1834  an- 
other example  of  the  power  of  the  king  suddenly  to  dismiss 
his  ministers  while  they  were  supported  by  the  house  of  com- 
mons. It  now  seems  proved,  however,  that  the  step  was 
c  A.  and  S.,  443-453. 


±56  THE  AGE  OF  REFORM 

taken  with  the  consent,  apparently  at  the  suggestion,  of 
the  prime  minister,  Lord  Melbourne,  who  thought  his  posi- 
tion insecure  and  wished  to  retire  from  it,  though  the  king, 
who  disliked  Melbourne,  was  glad  of  the  excuse.  The  in- 
cident affords  an  interesting  example  of  constitutional  prac- 
tice. The  leader  of  the  opposite  party,  Sir  Robert  Peel, 
was  in  Rome  at  the  moment.  He  returned  to  England  at 
once,  formally  accepted  responsibility  for  the  king's  action, 
organized  a  cabinet,  and  attempted  to  go  on  with  the  gov- 
ernment, though  hopeless  of  the  result.  The  appeal  to  the 
country  in  the  dissolution  of  parliament  which  followed 
shortly  increased  the  conservative  vote  in  the  house,  but  still 
left  the  party  in  a  decided  minority.  Peel  presented  to 
parliament  an  attractive  programme  of  reform,  but  the  hos- 
tile majority  would  have  none  of  it,  and  after  a  courageous 
struggle  of  four  months  since  his  appointment  he  was  obliged 
to  tell  the  king  that  he  must  recall  his  opponents  to  office. 
The  action  throughout  was  entirely  in  harmony  with  the  in- 
terpretation of  the  constitution  which  then  prevailed,  and 
still  prevails  in  theory,  but  it  is  not  likely  that  any  king 
will  repeat  the  attempt,  or  that  any  minister  could  now  sus- 
tain himself  in  a  similar  situation  so  long  as  Peel  did. 

The  action  of  Queen  Victoria  in  1839,  in  refusing  to  allow 
the  ladies  of  her  bedchamber  to  be  changed  by  the  incoming 
ministry,  by  which  she  maintained  Lord  Melbourne  in  office 
for  two  years  after  he  had  resigned,  is  hardly  a  case  of  the 
same  kind.  The  queen  was  acting  not  from  political  mo- 
tives but  because  she  believed  she  was  improperly  required  to 
make  a  personal  sacrifice ;  the  question  was  a  new  one  which 
had  never  occurred  as  an  issue  before ;  and  Sir  Robert  Peel 
was  not  anxicms,  from  the  uncertain  $>arty  temper  of  the 
house,  to  take  office.  By  the  time  he  had  obtained  a  secure 
majority  in  1841,  the  queen  had  concluded  that  she  ought 
to  yield  the  point.  The  publication  of  Queen  Victoria's 
letters  gives  many  interesting  glimpses  of  the  relation  of  the 
sovereign  to  the  government  during  the  middle  portion   of 


WHAT  THE  KING  MAY  DO  457 

the  century.  The  support  which  the  queen  gave  to  Sir 
Robert  Peel  during  his  efforts  for  tariff  reform  must  have 
been  a  great  encouragement  to  him.  In  1853,  when  Lord 
Aberdeen  was  trying  to  form  a  ministry,  the  queen  wrote 
him  saying  she  hoped  Mr.  Gladstone  would  be  made  chan- 
cellor of  the  exchequer  and  Lord  St.  Leonards  lord  chan- 
cellor. In  spite  of  this  request,  Aberdeen  tried  to  get  Mr. 
Graham  to  take  the  exchequer  and  Lord  St.  Leonards  was 
not  continued  as  chancellor.  Particularly  instructive  are 
the  accounts  given  in  the  letters,  especially  at  the  beginning 
of  1855,  of  the  difficulties  encountered  and  the  methods  em- 
ployed by  British  statesmen  in  forming  a  cabinet. 

The  memorandum  which  the  queen  sent  in  1850  to  the 
minister  for  foreign  affairs,  Lord  Palm'erston,  through  the 
prime  minister,  throws  great  light  on  the  sovereign's  relation 
to  the  formation  of  government  policy.  Lord  Palmerston 
was  inclined  to  conduct  the  business  of  his  department  in  an 
independent  and  somewhat  arbitrary  way,  and  the  memo- 
randum read :  "  The  queen  requires,  first,  that  Lord  Palm- 
erston will  distinctly  state  what  he  proposes  in  a  given  case, 
in  order  that  the  queen  may  know  as  distinctly  to  what  she 
is  giving  her  royal  sanction.  Secondly,  having  once  given 
her  sanction  to  a  measure,  that  it  be  not  arbitrarily  altered 
or  modified  by  the  minister.  Such  an  act  she  must  consider 
as  failing  in  sincerity  towards  the  crown,  and  justly  to  be 
visited  by  the  exercise  of  her  constitutional  rights  of  dis- 
missing that  minister.  She  expects  to  be  kept  informed  of 
what  passes  between  him  and  the  foreign  ministers,  before 
important  decisions  are  taken,  based  upon  that  intercourse ; 
to  receive  the  foreign  despatches  in  good  time ;  and  to  have 
the  drafts  for  her  approval,  sent  to  her  in  sufficient  time  to 
make  herself  acquainted  with  their  contents,  before  they  must 
be  sent  off."  What  the  queen  demands  is  clearly  not  a  voice 
in  shaping  the  ministerial  policy.  The  most  that  she  implies 
in  this  direction  is  a  possible  withholding  of  consent.  What 
she  demands  from  the  minister  is  complete  and  trustworthy 


458  THE  AGE  OF  REFORM 

information.  In  1851  Lord  Palmerston  was  dismissed  from 
office  because  he  had  officially  expressed  views  regarding  the 
coup  d'etat  in  Paris  in  variance  with  the  policy  adopted  by 
the  cabinet  and  sanctioned  by  the  queen.  In  the  period  be- 
tween 1832  and  the  present  time  there  has  unquestionably 
been  a  great  increase  of  the  power  and  widening  of  the  activ- 
ities of  the  executive,  but  this  change  has  been  to  the  advan- 
tage of  the  cabinet  and  not  of  the  sovereign.  For  this  rea- 
son, because  of  the  supposed  complete  subordination  of  the 
cabinet  to  parliamentary  control,  the  change  has  excited  no 
opposition  and  no  constitutional  criticism. 

In  the  history  of  political  parties  the  period  wrhich  fol- 
lowed the  reform  bill  was  one  of  a  loosening  of  party  ties  and 
of  unusual  disorganization.  A  radical  wing  of  the  whig 
party  had  already  formed,  and  grew  in  strength.  Sir  Rob- 
ert Peel's  repeal  of  the  corn  laws  split  the  tory  party  also, 
as  the  majority  refused  to  follow  him  and  the  smaller  body 
who  did,  known  as  the  Peelites,  acted  for  some  years  by 
themselves.  The  disintegration  of  the  older  parties  is 
shown  also  by  the  gradual  disuse  in  this  period  of  the  names 
whig  and  tory  and  the  substitution  for  them  of  the  new 
names  liberal  and  conservative,  with  a  restricted  and  special 
meaning  attached  to  the  still  occasionally  used  terms  whig 
and  tory.  As  a  result  of  this  condition  of  things,  the 
decade  from  1850  to  1860  is  a  tkne  of  coalition  ministries, 
mostly  short-lived  and  displaying  the  inevitable  weakness  of 
coalition  governments,  that  almost  ever}r  question  of  policy 
which  arises  is  regarded  by  different  sections  of  the  cabinet 
from  a  different  point  of  view.  About  1859  the  Peelites, 
whose  ablest  member  was  Gladstone,  definitely  identified 
themselves  with  the  liberal  party.  Following  this,  unless  we 
except  the  rise  of  the  Irish  home  rule  party  to  parliamentary 
influence  in  the  late  seventies,  there  was  nearly  a  quarter  of 
a  century  of  more  normal  party  relationships  and  party 
governments,  though  party  bonds   were  then  more   elastic 


THE  SECOND  REFORM  BILL  459 

than  now,  especially,  as  is  the  case  in  all  countries,  in  the 
liberal  party. 

It  was  twenty  years  after  the  passage  of  the  reform  bill 
of  1832  before  there  was  a  serious  attempt  to  make  further 
changes  of  the  same  kind.  In  1852  and  again  in  1854,  Lord 
John  Russell  introduced  new  reform  bills,  the  first  time  as 
prime  minister  and  the  second  as  a  member  of  the  cabinet 
and  leader  of  the  house  of  commons,  but  neither  measure 
was  pressed  to  a  test  vote.  In  1859,  Disraeli,  chancellor 
of  the  exchequer  in  Lord  Derby's  conservative  cabinet, 
brought  in  another,  which  was  rejected  and  the  ministry,  go- 
ing to  the  country  on  the  issue,  was  defeated  and  gave  way 
to  the  liberals,  who  held  office  until  1866.  In  1860  Lord 
John  Russell,  now  foreign  secretary,  made  his  third  attempt, 
but  the  bill  was  finally  withdrawn  through  the  pressure  of 
other  business,  and  in  1866  the  ministry  of  Earl  Russell, 
formerly  Lord  John  Russell,  was  defeated  on  another  reform 
bill  and  resigned.  The  liberal  party  was  at  that  time  so 
divided  within  its  own  ranks  upon  details  of  the  question 
that  it  could  not  perfect  and  carry  a  measure.  None  of 
these  proposed  bills  had  been  accompanied  by  any  very 
strong  popular  demand,  but,  on  the  defeat  of  the  last  bill, 
the  public,  especially  the  working  classes,  made  it  clear  that 
a  demand  for  reform  had  risen  which  must  be  satisfied.  The 
result  was  the  reform  bill  of  1867,  "  the  second  reform  bill," 
introduced  by  Mr.  Disraeli,  again  chancellor  of  the  ex- 
chequer. 

A  conservative  cabinet  was  in  office  under  the  earl  of 
Derby,  but  the  liberal  party,  when  acting  together,  had  a 
strong  majority  in  the  house  of  commons.  In  these  cir- 
cumstances Disraeli  proposed  that  the  reform  bill  should 
be  made  a  non-partisan  measure,  and  it  was  really  carried 
by  a  combination  of  both  parties.  The  liberals  were,  how- 
ever, strong  enough  to  make  the  bill  over  to  suit  themselves, 
and  Disraeli  wise  enough  to  allow  most  of  the  conservative 


460  THE  AGE  OF  REFORM 

safeguards  which  he  had  embodied  in  his  first  proposals  to 
be  thrown  out.  The  bill  passed  was  a  liberal  party  bill, 
though  it  probably  could  not  have  been  carried  without  con- 
servative votes,  and  certainly  it  would  have  been  rejected 
by  the  house  of  lords  if  it  had  not  been  the  government  meas- 
ure of  a  conservative  cabinet. 

The  second  reform  bill  was  framed  upon  the  same  lines  as 
the  first.7  The  qualifications  required  of  electors  were  de- 
cidedly lowered,  especially  of  voters  in  the  boroughs,  but  the 
tests  were  of  the  same  kind,  virtually  property  qualifications. 
In  the  boroughs  occupiers  of  houses  were  enfranchised,  and 
occupiers  of  lodgings  paying  a  rental  of  ten  pounds.  In 
the  counties  those  able  to  meet  a  twelve  pound  occupation 
requirement  were  added  to  existing' voters.  About  a  million 
new  voters  were  created  by  the  act,  not  quite  doubling  the 
previous  number,  but  the  step  towards  democracy  was  a 
longer  one  than  this  ratio  would  imply,  for  the  main  increase 
was  from  the  artisan  class  in  the  boroughs.  The  percentage 
of  increase  in  the  borough  vote  of  the  country  was  134,  and 
in  some  towns  the  old  number  of  voters  was  multiplied  by 
three.  Agricultural  laborers  were  still  without  the  vote, 
and  all  laborers  in  towns  which  were  not  parliamentary  bor- 
oughs. In  the  redistribution  of  seats  which  accompanied 
the  act,  fifty-two  were  taken  from  the  smaller  boroughs  and 
given  to  eleven  new  boroughs,  to  a  few  old  boroughs  in  in- 
creased representation,  and  to  the  counties. 

One  incidental  effect  of  this  bill  was  not  foreseen  and  would 
not  have  been  desired.  It  led  to  closer  party  organization 
and  even  to  something  like  machine  methods.  By  an  amend- 
ment made  by  the  house  of  lords  and  accepted  by  the  com- 
mons, a  limited  proportional  representation  was  introduced. 
In  five  boroughs  and  seven  counties,  electing  three  members 
each,  the  elector  was  not  allowed  to  vote  for  more  than  two. 
The  provision  accomplished  its  purpose  in  most  cases,  but 
in  Birmingham,  under  the  lead  of  Joseph  Chamberlain,  by 
T  A.  and  S.,  532-537;  Robertson,  Statutes,  425-426,  first  edition. 


THE  CONSTITUENCIES  IN  POWER         461 

a  new  local  organization  called  the  "  liberal  association," 
which  undertook  a  careful  supervision  of  the  liberal  vote  in 
the  borough,  the  party  was  able  to  retain  all  three  seats. 
This  was  the  beginning  of  what  came  to  be  known  in  England 
as  the  caucus  system.  Other  local  "  associations "  were 
formed  on  the  Birmingham  model,  and  also  a  "  national 
federation  of  liberal  associations."  The  permanent  result 
seems  to  have  been,  not  exactly  the  American  caucus  and 
convention  organization,  but  a  more  centralized  party  di- 
rection and  supervision  of  the  selection  of  candidates  and  of 
elections  than  existed  before,  and  with  it  a  decrease  of  in- 
dependence on  the  part  of  the  individual  voter  and  of  the 
party  candidate  as  well. 

The  general  tendencies  which  followed  from  the  broaden- 
ing of  the  suffrage  led  to  some  extent  in  the  same  direction. 
Gradually  the  dependence  of  the  house  of  commons  upon 
the  electors  was  increased.  By  degrees  the  controlling 
power  of  constituencies  began  to  be  more  immediately  felt. 
The  house  itself  began  to  change.  It  had  been  a  body  whose 
members  were  chosen  indeed  by  separate  localities,  but  to 
represent  not  the  locality  but  the  whole  nation.  It  was  the 
theory,  and  so  far  as  human  nature  permits  it  had  been  the 
fact,  that  the  house  in  full  and  free  discussion,  with  a  com- 
pleteness of  knowledge  and  a  consideration  of  all  circum- 
stances impossible  to  the  electors,  reached  its  own  decisions 
and  determined  the  fate  of  ministries  and  policies.  Now 
the  electors  in  the  different  constituencies  began  to  demand 
a  more  direct  responsibility  to  themselves,  to  regard  their 
member  as  the  means  of  their  own  expression  on  national 
questions,  and  above  all  to  expect  from  him  a  constant  fidel- 
ity to  the  party  which  had  elected  him.  These  are  all  clear 
indications  of  growing  democratic  power.  For  the  present, 
in  the  period  we  are  considering,  they  were  only  beginnings. 
Men  of  the  time  were  scarcely  conscious  of  them,  and  we 
have  become  aware  of  their  existence  less  by  a  study  of  the 
facts  of  the  time  alone  than  by  tracing  back  to  their  be- 


462  THE  AGE  OF  REFORM 

glnnings  changes  which  are  later  more  clearly  forced  upon 
us. 

The  general  election  of  1868  gave  the  liberals  a  strong 
majority,  and  Disraeli,  who  had  succeeded  the  earl  of  Derby 
as  prime  minister  early  in  the  year,  resigned  without  waiting 
for  the  meeting  of  parliament,  the  first  minister  to  recognize 
in  this  way  the  decision  of  the  country.  Gladstone  then  be- 
came prime  minister  and  continued  in  office  until  1874.  The 
five  3rears  of  his  administration  was  a  time  of  important  re- 
forms. The  Irish  church  was  disestablished,8  and  an  Irish 
land  bill  passed,  the  beginning  of  protection  for  the  tenant 
farmer.  An  education  bill  carried  farther  the  nationaliza- 
tion of  education.  Non-conformists  were  admitted  to  the 
universities.  The  purchase  of  commissions  in  the  army  was 
abolished  by  an  act  of  the  royal  prerogative,  when  the  house 
of  lords  seemed  likely  to  defeat  the  bill  for  that  purpose.  A 
second  bill  to  introduce  voting  by  ballot  was  passed  after 
the  house  of  lords  had  set  the  first  bill  aside.  Finally  the 
judicature  acts  already  discussed  were  passed.  Meanwhile 
proposals  for  the  extension  of  the  suffrage  had  been  made 
in  parliament,  but  no  favorable  action  was  taken  before 
Gladstone's  second  ministry,  which  began  in  1880. 

Bibliographical  Note. —  Sir  W.  R.  Anson,  The  Law  and 
Custom  of  the  Constitution,  1907-9.  P.  Ashley,  Local  and 
Central  Government,  1906.  W.  Bagehot,  The  English  Consti- 
tution, 1872.  J.  R.  M.  Butler,  The  Passing  of  the  Great  Re- 
form Bill,  1914.  A.  V.  Dicey,  The  Relation  Between  Law  and 
Public  Opinion  in  England  in  the  Nineteenth  Century,  1905; 
The  Law  of  the  Constitution,  1915.  E.  Dolleans,  Le  Chartisme, 
1913.  A.  L.  Lowell,  The  Government  of  England,  2  vols.,  1912. 
W.  B.  Odgers,  Local  Government,  1907.  C.  Seymour,  Electoral 
Reform  in  England  and  Wales,  1915.  J.  R.  Thursfield,  Peel,' 
1891.  G.  S.  Veitch,  The  Genesis  of  Parliamentary  Reform, 
1912. 

8  A.  and  S.,  538-543. 


CHAPTER  XIX 
DEMOCRATIC  ENGLAND 

If  the  reform  bill  of  1867  set  England  upon  the  threshold 
of  a  new  political  epoch  in  progress  towards  democracy,  the 
third  bill  of  1884*  threw  the  door  wide  open.  In  fact  Eng- 
land was  ready  for  a  step  which  was  nearly  final.  Reform 
had  lost  its  terrors  during  half  a  century  in  which  no  national 
calamities  had  followed  from  it.  Society  had  not  been  dis- 
rupted ;  property  had  not  been  made  insecure ;  and  the  rad- 
ical party  had  not  obtained  permanent  possession  of  the 
government.  Even  the  larger  extension  of  the  suffrage  in 
1867  had  not  disturbed  the  balance  of  parties.  Not  merely 
in  the  intellectual  convictions  of  men,  but  in  habits  of  thought 
and  action,  democracy  had  made  great  progress. 

On  becoming  prime  minister  for  the  second  time  in  1880, 
Mr.  Gladstone  had  a  great  majority  in  the  house  of  commons, 
but  he  did  not  introduce  a  new  enfranchisement  bill  until 
1884.  In  the  previous  year  an  incident  illustrates,  in  one 
of  the  first  important  cases  of  the  kind  occurring,  the  meth- 
ods by  which  the  constituencies  were  bringing  their  influ- 
ence to  bear  upon  parliament  and  also  directly  upon  the 
cabinet.  In  October  £500  delegates  from  500  liberal  asso- 
ciations met  in  conference  at  Leeds,  and  discussed  a  reform 
programme  which  they  desired  to  have  followed  by  the  min- 
istry, and  this  was  only  one  of  several  similar  incidents  of 
the  time. 

The  new  reform  bill  was  not  seriously  opposed  on  prin- 
ciple by  the  conservatives,  but  they  found  their  point  of 
opposition  in  the  fact  that  a  bill  for  a  redistribution  of 
seats  did  not  accompany  it  but  was  to  be  postponed  for  a 
year.     On  this  ground  the  bill  was  rejected  by  the  house  of 

463 


464  DEMOCRATIC  ENGLAND 

lords.  Mr.  Gladstone  refused  to  order  a  general  election 
on  this  account,  but  in  preparation  for  a  new  session,  in 
which  the  bill  should  be  introduced  again,  the  subject  was 
vigorously  debated  before  the  electors.  In  this  debate  a 
suggestion  was  heard,  not  indeed  for  the  first  time  during 
the  nineteenth  century,  but  perhaps  for  the  first  time  as  a 
serious  proposal,  that  it  might  prove  necessary  to  remodel 
the  constitution  of  the  house  of  lords,  and  Gladstone  formally 
called  the  attention  of  Queen  Victoria  to  this  feature  of  the 
discussion.  The  queen  was  naturally  disturbed  at  such  a 
possibility,  and  hardly  less  at  the  prospect  of  a  deadlock 
between  the  two  houses.  She  undertook  in  consequence  the 
office  of  mediator,  and  wrote  to  Gladstone  and  to  Lord  Salis- 
bury urging  a  personal  conference  between  them  to  see  if  they 
could  not  arrive  at  an  understanding  which  would  permit 
the  bill  to  pass. 

In  such  a  conference  the  proposed  provisions  of  the  re- 
distribution bill  were  explained  to  the  conservative  leaders 
and  found  to  be  unobjectionable,  and  the  bill  was  passed  by 
the  lords.  Gladstone  at  once  expressed  his  gratitude  to  the 
queen,  writing  her  that  "  his  first  duty  was  to  tender  his 
grateful  thanks  to  Her  Majesty  for  the  wise,  gracious,  and 
steady  influence  on  your  Majesty's  part  which  has  so  pow- 
erfully contributed  to  bring  about  this  accommodation,  and 
to  avert  a  serious  crisis  of  affairs."  Already  in  1869  Vic- 
toria had  interfered  in  a  similar  way  on  the  prospect  of  a 
deadlock  on  the  Irish  disestablishment  bill  with  equal  suc- 
cess, and  received  Mr.  Gladstone's  written  thanks.  Again 
in  1885,  after  Mr.  Gladstone  had  been  defeated  by  a  com- 
bination of  conservative  and  Irish  votes,  she  labored  with  suc- 
cess to  bring  about  an  understanding  between  Lord  Salis- 
bury, who  was  trying  to  form  a  conservative  ministry,  and 
Gladstone,  who  still  commanded  100  more  votes  in  the  house 
than  the  conservatives  unless  they  could  have  the  uncertain 
support  of  the  Irish.  These  instances  are  all  good  examples 
of  the  influence  upon  practical  affairs  which  the  crown  may 


THE  THIRD  REFORM  BILL  465 

still  exert,  not  to  make  decisions  but  to  smooth  away  diffi- 
culties and  to  make  things  easy  for  those  who  do  decide. 

By  the  reform  bill  of  1884  !  the  "  occupation  franchise," 
which  had  been  given  the  boroughs  in  1867,  was  extended 
to  the  counties,  and  the  qualifications  for  the  suffrage  in 
these  two  kinds  of  electoral  districts  were,  with  some  slight 
exceptions,  made  uniform  for  the  first  time  in  parliamentary 
history.  The  right  to  vote  was  granted  to  every  male  over 
twenty-one  years  of  age  who  was  the  "  inhabitant  occupier  " 
of  a  dwelling  house,  or  of  any  part  of  a  house  occupied  as 
a  separate  dwelling,  whether  he  occupied  as  owner,  as  tenant, 
or  by  virtue  of  any  office,  service,  or  employment,  unless  the 
house  was  also  occupied  by  the  person  whom  he  served ;  and 
to  ever}'  lodger  occupying  rooms  of  a  yearly  value,  if  let 
unfurnished,  of  ten  pounds.  The  act  did  not  quite  introduce 
a  democratic  universal  suffrage.  Some  old  privileges,  prop- 
erty franchises,  the  plural  voter,  still  remained.  A  young 
man  living  in  his  father's  famil}r,  a  servant  living  in  his 
master's  house,  could  not  vote.  But  these  exceptions  were 
of  comparatively  small  importance.  The  coachman  or 
gardener  living  in  a  cottage  on  the  estate  could  be  put  on  the 
register,  and  any  man  earning  day  wages,  or  having  an 
equivalent  income,  who  was  willing  to  take  the  trouble  to 
meet  the  conditions,  was  really  enabled  to  do  so.  Under 
this  act  nearly  as  many  votes  in  proportion  to  the  popula- 
tion have  been  cast  in  a  parliamentary  as  in  an  American 
congressional  election. 

In  1885  an  act  redistributing  seats  and  rearranging  elec- 
toral districts  was  passed,2  making  far  more  radical  changes 
than  ever  before.  Twelve  new  members  were  added  to  the 
house  of  commons,  making  670  in  all.  Of  these  465  were  to 
be  returned  by  England,  30  by  Wales,  72  by  Scotland,  and 
103  by  Ireland,  England  having  the  smallest  representation 
in  proportion  to  population  and  Ireland  the  largest.      Some 

i  A.  and  S.,  553-555;  Robertson,  Statutes,  427-4J8,  first  edition. 
2  A.  and  S.,  554-555;  Robertson,  Statutes,  4:27-428,  first  edition. 


466  DEMOCRATIC  ENGLAND 

few  constituencies  were  left  returning  more  than  one  member 
but  the  most  of  the  United  Kingdom  was  divided  into  617 
electoral  districts  each  choosing  a  single  member.  These 
districts  were  determined  by  population  and,  while  the  prin- 
ciple of  the  representation  of  equal  units  of  population 
Was  not  quite  so  exactly  realized  in  England  as  in  the  United 
States,  there  are  inequalities  with  us,  and  perfect  exactness 
of  measure  is  hardly  possible  anywhere.  In  the  meantime 
other  acts,  perhaps  less  strictly  constitutional  in  character, 
had  made  the  way  of  democracy  easier.  The  Australian 
secret  ballot  had  been  adopted ;  3  registration  had  been  and 
was  to  be  further  simplified  in  the  interest  of  the  elector; 
and  corrupt  practices  acts  had  greatly  reduced  the  oppor- 
tunity to  influence  elections  improperly. 

Since  1885  in  everything  except  a  few  points,  less  impor- 
tant practically  than  theoretically,  England  has  been  a  de- 
mocracy. It  is  indeed  fair  to  say  that,  so  far  as  the  im- 
mediate influence  of  public  opinion  upon  government  policy 
is  concerned,  England  has  been  for  a  generation  more  demo- 
cratic than  the  United  States.  The  cabinet  system  of  gov- 
ernment, the  ministry  responsible  to  the  house  of  commons, 
losing  office  when  it  loses  its  majority,  provides  a  way  by 
which  almost  automatically,  without  waiting  for  a  future 
election  day,  a  change  of  national  judgment  is  carried  out  in 
a  change  of  government  policy,  provided  always  that  opinion 
changes  in  the  house  of  commons  with  the  change  of  opinion 
outside.  It  has  done  so  certainly  in  the  past  and  may  be 
expected  to  do  so  in  the  future,  indeed  with  the  increased 
power  of  the  constituencies  over  the  house  hardly  any  other 
result  is  possible. 

This  control  of  parliament  and  of  the  cabinet  by  the  pres- 
sure of  outside  opinion  is  the  most  characteristic  feature  of 
the  history  of  party  and  of  the  practical  operation  of  gov- 
ernment since  the  reform  bill  of  1884.  Even  before  that  bill 
could  have  any  effect,  the  pressure  was  very  consciously  felt 
a  A.  and  S.,  540-543. 


POWER  OF  PUBLIC  OPINION  467 

by  ministers.  In  1880,  after  he  had  become  prime  minister, 
Gladstone  wrote  to  Lord  Rosebery :  "  What  is  outside  Par- 
liament seems  to  me  to  be  fast  mounting,  nay  to  have  already 
mounted,  to  an  importance  much  exceeding  what  is  inside ;  " 
and  after  the  government  had  resigned  in  1885,  the  duke  of 
Argyll  wrote  Gladstone  that  he  thought  he  had  allowed 
"  speeches  outside  to  affect  opinion,  and  politically  to  commit 
the  cabinet  in  a  direction  .  .  .  which  was  not  determined 
by  the  Government  as  a  whole."  These  words  describe 
nothing  more  than  a  natural  result  of  the  establishment  of 
democracy,  and  the  tendency  to  which  they  refer  went  on 
unchecked  and  with  increasing  force  in  the  years  following. 

The  results  brought  about  before  the  close  of  the  century 
were  very  marked,  and  we  have  for  them  not  merely  the 
evidence  of  critics  but  the  testimony  of  men  familiar  from 
experience  with  the  inner  working  of  government.  They 
constitute  unmistakably  a  change  from  the  mid-Victoria 
period,  both  in  the  general  aspect  of  parliamentary  govern- 
ment and  in  the  relationship  of  the  component  parts  to  one 
another,  as  these  matters  were  described  by  the  writers  of 
that  time,  and  as  they  then  unquestionably  existed.  In  gen- 
eral it  may  be  said  that  the  effect  of  these  changes  has  been 
to  bring  about  a  much  greater  similarity  in  the  surface  ap- 
pearance and  in  the  practical  working  of  government  be- 
tween England  and  the  United  States  than  formerly  existed, 
notwithstanding  the  great  constitutional  differences  which 
still  remain.  They  are  results  which  have  not  yet  expressed 
themselves  in  constitutional  form,  except  perhaps  in  one  in- 
stance. They  have  affected  the  conventional  rather  than 
the  legal  side  of  the  constitution,  the  interpretation  rather 
than  the  form,  but  it  need  not  be  repeated  that  changes  of 
that  kind  in  English-speaking  nations  are  changes  of  sub- 
stance. 

It  cannot  yet  be  asserted  with  confidence  that  these  changes 
are  so  fixed  that  they  imply  the  passage  of  the  constitu- 
tion from  one  stage  of  its  development  into  another.     Cab- 


468  DEMOCRATIC  ENGLAND 

inet  and  parliamentary  government  are  not  yet  so  far  re- 
moved from  their  Victorian  phase,  so  much  of  the  latter 
still  lingers  in  theory  and  in  popular  interpretation,  that  a 
return  to  it  in  reality  is  not  impossible  if  democracy  should 
outgrew  the  stage  of  somewhat  nervous  experimenting  to  find 
out  what  it  can  do  and  how  to  do  it,  and  settle  down  into 
a  confident  possession  of  power,  so  that  the  member  of  the 
house  of  commons  need  no  longer  be  a  delegate.  If  means 
can  be  found  to  relieve  the  house  of  more  of  the  burden  of 
local  government  and  of  minor  and  insignificant  detail,  so 
that  opportunity  of  general  debate  on  greater  questions, 
debate  that  can  be  really  fruitful  of  results,  can  be  restored, 
the  Victorian  system  of  cabinet  government  may  easily  re- 
turn. We  shall  notice  after  1905  some  qualification  of  late 
nineteenth  century  tendencies.  The  really  essential  change 
was  one  that  concerns  the  relation  of  the  cabinet  to  the  house 
of  commons  on  one  side  and  to  the  constituencies  on  the 
other.  To  state  it  in  the  baldest  way :  the  house  of  commons 
seemed  to  be  no  longer  the  master  and  director  of  the  cab- 
inet, but  the  cabinet,  appointed  and  supported  by  the  elec- 
torate, to  be  about  to  become  the  master  and  director  of 
the  house  of  commons.  The  statement  is  perhaps  a  little 
too  strong,  but  the  necessary  qualifications  can  best  be  made 
in  a  more  full  account  of  the  situation. 

Since  the  second  reform  bill,  the  majorities  by  which  one 
party  or  the  other  has  triumphed  in  the  elections  have  been 
as  a  rule  so  great  as  to  give  the  government  formed  by  that 
party  a  complete  control  in  the  house.  A  majority  of  more 
than  a  hundred  is  not  easily  turned  into  a  minority  by  the 
desertion  of  dissatisfied  members.  The  exceptions  have  been 
found  chiefly  where  independent  groups,  like  the  Irish  home- 
rule  party,  Have  held  the  balance  of  power.  To  this  fact 
must  be  added  two  others.  One  is  that  the  new  constitu- 
encies demanded  a  much  more  unwavering  loyalty  to  the 
party  leaders  than  used  to  be  shown  them  by  the  rank  and 
file  of  their  party  in  the  house.     They  seem  to  have  reached 


INCREASED  POWER  OF  CABINET  469 

a  very  definite  conclusion  that  the  things  they  desire  can  be 
best  secured  by  a  strict  adherence  to  the  party  programme. 
The  organization  of  the  "  associations  "  made  it  easier  than 
before  both  to  concentrate  opinion  at  home  and  to  bring  it 
to  bear  upon  the  member.  In  the  second  place,  secure  seats 
were  not  so  easy  to  find  as  under  the  aristocratic  regime. 
An  election,  with  all  the  cross-currents  of  interest  in  the 
community  and  with  a  number  of  candidates  in  the  field, 
was  always  an  uncertain  and  always,  with  its  legitimate  ex- 
penses, a  costly  affair.  A  member  was  not  very  happy  in 
taking  an  independent  stand  unless  he  felt  sure  that  he  had 
behind  him  the  opinion  of  those  who  elected  him.  In  con- 
sequence the  coercive  power  of  a  threat  to  dissolve  parlia- 
ment and  to  appeal  to  the  country  in  a  general  election  be- 
came almost  irresistible.  The  cabinet  had  in  its  hands  a 
whip,  which  it  did  not  hesitate  to  use,  to  drive  doubtful  sup- 
porters back  into  the  party  lines.  To  declare  a  bill  a  gov- 
ernment measure,  and  therefore  one  on  which  defeat  would 
endanger  the  life  of  parliament,  was  an  almost  certain  means 
of  carrying  it  and  of  defence  against  any  material  amend- 
ment. 

If  we  suppose  this  theory  carried  to  its  logical  conclusion, 
the  cabinet  would  be  the  absolute  master  of  parliament,  and 
the  theory  on  which  the  cabinet  system  of  government  is 
founded  would  no  longer  correspond  to  the  facts.  That 
theory  is,  that  members  of  the  house  who  have  supported  the 
cabinet  on  one  question  may  vote  against  it  on  another. 
It  is  the  theory  that  the  government  must  maintain  its  posi- 
tion by  convincing  a  majority  of  the  house,  or  the  uncon- 
vinced members  of  its  own  party  will  vote  against  it  and 
turn  it  out.  If  this  is  no  longer  true,  then  after  an  election 
with  its  great  majority  a  cabinet  will  be  unshakable,  until 
the  life  of  parliament  expires  by  statute  limitation.  In  that 
case  there  would  be  no  difference  of  any  importance  between 
the  British  system  and  the  American  plan  of  congressional 
elections  at  fixed  dates.     That  the  tendency  is  towards  such 


470  DEMOCRATIC  ENGLAND 

a  result  cannot  be  denied,  but  it  has  hardly  been  reached  as 
yet.  Members  of  the  party  in  the  house  do  still  occasion- 
ally turn  against  the  government.  Majorities,  however 
large  at  the  beginning,  do  still  sometimes  crumble  and  dis- 
integrate, as  had  Mr.  Balfour's  in  1905.  The  outside 
power,  which  sustains  or  destroys  a  cabinet,  has  been,  for 
nearly  two  hundred  years,  public  opinion.  It  is  not  so  much 
this  fact  which  has  changed  as  the  point  at  which  this  force 
makes  itself  evident.  The  house  of  commons  is  no  longer 
the  place  where  public  opinion  is  collected  and  made  known, 
as  in  the  middle  ages,  nor,  as  in  the  eighteenth  century  so 
far  as  public  opinion  existed  at  all,  where  it  is  led  and  de- 
termined. Parliament  and  cabinet  are  both,  independent 
of  one  another,  controlled  by  opinion  which  is  formed  and 
declared  elsewhere,  and  the  house  of  commons  seems  to  be 
likely  to  be  reduced  more  and  more  to  the  position  of  a 
registering  machine  recording  an  outside  decision.  As  a 
matter  of  the  mechanics  of  'the  constitution,  it  still  brings 
that  decision  to  bear  upon  government,  not  because  the 
opinion  is  of  its  own  formation,  but  because  it  is  the  his- 
torical institution  through  which  that  function  has  always 
been  performed,  and  nothing  better  for  the  purpose  has  yet 
been  devised. 

If  we  could  be  sure  that  these  tendencies  which  we  detect 
in  operation  during  the  last  forty  years  were  real  and  per- 
manent, then  we  should  have  to  do  with  a  constitutional 
change  as  great  as  any  in  the  past.  Whether  that  is  so  or 
not,  time  alone  can  decide,  but  there  are  certain  attendant 
features  of  this  democratic  movement  which  ought  not  to 
be  overlooked.  One  of  the  most  significant  is  that  debating 
in  the  house  of  commons  seems  to  have  little  influence  on 
the  vote  which  follows.  The  really  interesting  portions  of 
a  debate  are  the  little  tactical  scrimmages  which  occur  now 
and  then,  not  the  solid  arguments  pro  and  con.  If  the  re- 
sult is  a  foregone  conclusion,  determined  by  the  huge  min- 
isterial majority  and  by  the  decision  of  the  constituencies, 


THE  COMMONS  LESS  POWERFUL  471 

every  one  knows  the  debate  on  the  merits  of  the  measure  will 
not  change  it.  Speeches  in  opposition  are  not  of  much  more 
effect  than  the  protests  entered  in  the  journals  of  the  house 
of  lords.  They  serve  to  make  a  record  of  the  speaker's 
stand.  In  many  cases  they  really  are  addressed  to  the  out- 
side public.  Members  do  not  listen  to  the  debates.  Inatten- 
tion does  not  go  quite  so  far  as  in  the  American  congress, 
but  it  seems  to  be  approaching  our  record,  and  for  t..e  same 
reason.  Real  discussion,  by  which  the  opinion  is  formed 
which  decides  public  questions,  has  been  transferred  from  the 
house  of  commons  to  the  political  platform  and  to  the  news- 
paper and  periodical  press.  It  is  addressed  directly  to  those 
who  make  the  decisions. 

Another  characteristic  is  that  oftentimes  business,  and 
sometimes  business  of  great  importance,  is  disposed  of  with 
no  adequate  discussion.  This  is  not  due  alone  to  the  fact 
that  so  large  a  portion  of  each  session  is  taken  up  with 
government  business.  It  is  partly  owing  to  the  vast  amount 
of  local  and  detailed  business  which  parliament  must  settle, 
and  it  affects  government  bills  as  well  as  private  bills.  If 
the  house  of  commons  loses  its  power  to  decide  questions  of 
prime  importance,  it  may  still  perform  a  very  necessary 
function  in  the  criticism  of  details,  in  forcing  the  govern- 
ment, the  main  feature  of  whose  measure  is  sure  to  be 
adopted,  to  defend  every  subordinate  means  it  proposes  to 
employ  for  its  purpose.  This  is  particularly  true  of  finan- 
cial legislation,  but,  notwithstanding  the  pains  which  have 
been  taken  to  secure  full  discussion  by  a  compulsory  assign- 
ment of  time  to  this  subject  throughout  the  session,  the 
object  has  not  been  attained.  Business  is  always  in  arrears; 
it  is  crowded  into  the  last  days  of  the  session,  and  important 
questions  often  have  to  be  settled  with  almost  no  examination. 

The  changes  affecting  relations  between  electorate,  parlia- 
ment, and  cabinet  did  not  escape  the  attention  of  men  who 
were  actively  interested  in  parliament  and  government.  Lord 
Salisbury  said  in  1894:  "There  is  an  enormous  change  in 


472  DEMOCRATIC  ENGLAND 

the  house  of  commons  as  I  recollect  it,  and  the  evolution  is 
still  going  on,  and  we  have  reached  this  point  —  that  discus- 
sion of  a  measure  is  possible  in  the  Cabinet,  but  for  any 
effective  or  useful  purpose,  it  is  rapidly  becoming  an  impos- 
sibilit}'  in  the  house  of  commons."  In  the  same  year  he  said 
again :  "  I  think  .  .  .  that  in  respect  to  the  larger  issues, 
the  house  of  commons  is  gradually  losing  its  power,  between 
the  cabinet  on  the  one  side,  and  the  electorate  on  the  other." 
In  1901  Lord  Hugh  Cecil,  a  conservative  leader,  said  in  the 
house  of  commons :  "  .  .  .  there  is  a  deep  seated  feeling  that 
the  house  is  an  institution  which  has  ceased  to  have  much 
authority  or  much  repute,  and  that  when  a  better  institution, 
the  cabinet,  encroaches  upon  the  rights  of  a  worse  one,  it  is 
a  matter  of  small  concern  to  the  country."  In  1911,  said 
the  present  lord  chancellor,  then  Mr.  F.  E.  Smith,  also  in 
the  house :  "  Honorable  members  know  the  conditions  under 
which  business  is  carried  on  in  the  house.  It  is  only  a  form 
and  a  name  to  say  that  they  are  left  to  the  house  of  com- 
mons. They  are  not  left  to  the  house  at  all ;  they  are  left 
to  the  cabinet." 

If  these  observations  of  modern  tendencies  are  correct,  cer- 
tain conclusions  would  seem  to  be  inevitable.  The  house  o£ 
commons  no  longer  holds  the  ministry  to  its  responsibility. 
If  the  house  turns  against  the  ministry  only  because  the 
constituencies  have  turned  that  way,  the  power  has  passed 
from  the  house  to  the  constituencies.  The  mid-Victorian 
judgment  that  the  cabinet  is  a  third  house  of  the  legislature 
is  emphatically  true ;  the  cabinet  is  almost  the  legislature. 
Again,  while  general  elections  in  England  are  somewhat  more 
likely  to  turn  directly  upon  questions  of  national  policy  than 
in  the  United  States,  they  will  most  frequently  be  a  choice  of 
men,  or  of  general  poliej',  rather  than  a  decision  of  specific 
issues.  It  seems  inevitable  also  that  there  will  be  a  slow 
lowering  of  the  intellectual  level  of  the  house  of  commons, 
and  many  observers  have  believed  that  this  change  is  already 
evident.     There  are  so  many  points  of  similarity  between 


THE  PRESENT  HOUSE  OF  LORDS  473 

the  features  of  English  public  life  which  have  been  noted 
and  the  political  characteristics  of  public  life  in  America 
that  they  would  seem  to  indicate  the  natural  tendencies  of  a 
democracy,  or  at  least  of  a  democracy  learning  the  business 
of  government.  It  is  the  business  of  the  historian,  however, 
especially  with  regard  to  his  own  age,  to  note  what  is,  rather 
than  to  draw  definite  conclusions.  His  experience  also 
teaches  him  greater  caution  in  positive  statement  about  his 
own  time  than  even  about  some  past  age. 

The  house  of  lords  during  this  period  has  undergone  less 
real  change  than  the  house  of  commons.  The  limits  of  its 
power  have  been  for  the  first  time  expressed  in  statute  form, 
but  the  statute  did  not  make  a  change;  it  defined  in  specific 
terms  a  change  which  had  already  taken  place.  Apart  from 
this  one  fact,  the  history  of  the  house  of  lords  has  followed  the 
same  lines  of  development  for  many  centuries.  During 
modern  times  it  has  slowly  grown  in  numbers  with  the  in- 
crease of  the  population  and  wealth  of  England.  The  essen- 
tial facts  have  been  given  for  the  sixteenth  century.  The 
Stuarts  made  a  net  addition  of  94,  and  William  and  Anne 
raised  the  total  number  to  178  besides  the  Scotch  representa- 
tive peers.  Many  creations  were  made  by  George  I  and 
George  II,  but  on  the  accession  of  George  III  the  number 
was  still  only  174.  His  creations  numbered  388,  but  of 
these  only  128  were  in  existence  as  separate  peerages,  in  the 
460  members  of  the  house,  in  1860.  Some  titles  had  of 
course  become  absorbed  in  others,  but  many  had  become 
extinct.  Nowhere  is  the  tendency  of  the  race  to  die  at  the 
top  so  easily  illustrated  as  in  the  history  of  the  British 
peerage.  In  the  first  twenty-eight  years  of  Queen  Victoria's 
reign  there  was  no  increase  in  members,  one  peerage  becoming 
extinct  for  every  new  one  created.  Few  families  survive  the 
second  century  after  they  attain  rank,  and  the  peerage  has 
practically  been  renewed  at  about  that  interval  of  time  ever 
since  the  Norman  conquest.  Creations  have  been  freely 
made  in  recent  times.     The  house  numbered  591  at  the  acces- 


4-74  DEMOCRATIC  ENGLAND 

sion  of  Edward  VII,  and  623  at  that  of  George  V.  Its 
number  on  March  31,  1919,  was  698.  Of  these  130  are 
recorded  as  liberal,  though  between  1905  and  1919,  149 
peerages  had  been  created  by  liberal  and  coalition  ministries. 

Since  the  democratic  movement  began  in  England  the 
house  of  lords  has  become  somewhat  more  representative,  at 
least  of  the  wealth  of  the  country.  To  make  it  so,  is  said 
to  have  been  the  deliberate  policy  of  the  younger  Pitt.  Cre- 
ations have  been  more  freely  made  from  those  who  have  dis- 
tinguished themselves  in  commerce  and  manufactures,  and 
distinction  in  literature  and  science,  particularly  the  latter, 
has  also  been  recognized.  But  these  creations  have  had  no 
effect  on  the  attitude  of  the  house  towards  public  questions. 
It  has  not  become  more  representative  of  the  nation  polit- 
ically. As  has  been  said  above,  it  has  always  seemed  to  be 
difficult,  with  distinguished  exceptions,  for  a  family  to  remain 
long  liberal  after  it  enters  the  house  of  lords,  and  this  has 
been  especially  true  since  the  secession  of  the  old  whig 
families  in  protest  against  Gladstone's  first  home  rule  bill. 
Between  1830  and  1910  the  conservatives  in  34  years  of  office 
created  181  peers,  and  the  liberals  in  45  years,  270,  but  in 
the  peerage  books  of  1911  the  number  of  liberals  recorded  is 
105,  and  by  no  means  so  many  could  be  depended  upon  to 
be  present  in  a  division. 

In  responding  to  a  toast  to  the  house  of  lords  in  1881, 
the  earl  of  Derby  said :  "  I  am  not  going  to  give  you  a  con- 
stitutional essay  on  the  rights  and  duties  of  the  house  of 
lords — rights  which  for  the  most  part  it  does  not  practically 
enjoy,  and  duties  which  for  the  most  part  it  does  not  prac- 
tically perform."  Undoubtedly  Lord  Derby  had  no  inten- 
tion of  being  taken  literally.  He  was  merely  putting,  in  a 
pleasant  after-dinner  way,  a  popular  feeling  about  the  lords, 
but  an  exaggerated  one.  The  house  of  lords  has  still  im- 
portant rights  which  it  enjoys,  and  important  duties  which 
it  performs,  as  we  shall  see.  A  function  of  the  house  of 
great  value  which  .still  survives  is  that  of  debate  and  amend- 


VALUE  OF  THE  UPPER  HOUSE  475 

ment.  The  course  of  business  in  the  lords  is  far  more 
leisurely  than  in  the  commons.  It  is  not  so  buried  in  details. 
It  can  give  abundant  time  to  the  more  important  subjects 
which  come  before  it,  and  its  rules  of  debate  allow  of  thorough 
discussion.  Those  who  attend  regularly  and  take  part  in 
the  debates  are  the  ablest  members  of  a  picked  body,  espe- 
cially trained  in  public  affairs,  and  the  debating  is  on  a 
very  high  level.  The  average  is  much  above  the  average  of 
the  house  of  commons  debates,  and  its  influence,  with  the  ex- 
ception of  occasional  speeches  in  the  lower  house,  is  greater. 
The  amendments  made  by  the  lords,  and  not  infrequently 
accepted  by  the  commons,  often  go  far  to  make  up  the  latter's 
deficiencies  in  the  examination  of  a  measure.  Even  the  re- 
jection of  a  bill  which  the  commons  has  passed  may  be  ac- 
cepted as  a  more  accurate  expression  of  public  opinion,  or 
at  least  as  a  not  unwelcome  postponement  of  a  doubtful 
measure.  The  rejection  by  the  upper  house  of  Gladstone's 
second  home  rule  bill  in  1893  has  commonly  been  regarded 
as  warranted  by  the  general  feeling  of  doubt  and  reluctance 
among  the  people.  The  attitude  of  the  house  of  lords  to- 
wards the  measures  proposed  by  the  liberal  ministry  after 
the  election  of  1906  will  be  considered  in  the  next  chapter. 

The  cabinet  not  merely  inherited,  during  the  nineteenth 
century,  the  executive  power  of  the  crown  and  the  legislative 
power  of  parliament,  it  was  also  itself  directly  affected  by 
the  currents  of  change  which  then  prevailed.  For  one  thing, 
it  steadily  increased  in  size.  The  cabinets  of  the  opening 
century  numbered  barely  a  dozen  members ;  by  the  middle 
of  the  century  the  number  had  risen  to  fourteen  or  fifteen ; 
at  the  end  there  were  nineteen  or  twenty  members.  The 
increase  was  not  due  primarily  to  a  wish  to  have  the  advice 
of  a  larger  number  of  political  leaders.  Such  a  wish  is  dis- 
proved by  the  tendency,  which  has  been  particularly  marked 
of  recent  years,  to  form  an  inner  circle  of  especially  influ- 
ential ministers,  like  the  conciliabulum  of  the  eighteenth  cen- 
tury.    The  increase  has  been  due  chiefly  to  the  growth  of  new 


476  DEMOCRATIC  ENGLAND 

administrative  departments,  charged  with  work  of  so  great 
importance  that  the  head  of  the  department  seemed  neces- 
sarily of  cabinet  rank,  or  to  a  corresponding  increase  of  the 
importance  of  the  work  of  older  departments.  The  growth 
of  the  business  of  these  departments,  old  and  new,  and  the 
character  of  the  work  they  have  had  to  supervise,  are  signifi- 
cant signs  of  the  expansion  which  government  has  undergone 
in  the  past  two  or  three  generations.  The  two  secretaries  of 
state  of  Elizabeth's  time  grew  into  five  in  the  nineteenth  cen- 
tury. During  most  of  the  eighteenth  century  there  had 
been  three,  the  third  a  part  of  the  time  for  Scotland,  a  part 
of  the  time  for  the  colonies ;  but  the  third  did  not  become 
permanent  until  1794,  when  a  secretary  for  war  was  ap- 
pointed. In  1801  he  was  given  charge  also  of  the  colonics. 
In  1854  these  two  departments  were  separated  and  a  secre- 
tary of  state  for  the  colonies  appointed,  and  in  1858,  when 
India  was  transferred  from  the  East  India  company  to  the 
crown,  a  secretary  of  state  for  India.  Since  1782  the  two 
original  secretaries  have  been,  the  one  at  the  head  of  the 
home  department,  the  other  of  the  foreign.  The  office  of 
the  secretary  at  war,  never  a  secretary  of  state,  and  generally 
occupied  with  subordinate  duties  only,  was  not  continued 
after  1863.  In  strict  legal  theory,  the  five  secretaries  of 
state  are  one,  that  is,  they  perform  the  duties  of  one  office. 
In  most  things  any  one  of  them  can  do  the  work  of  any 
other,  and  most  statutes,  in  conferring  powers  upon  "  the 
secretary  of  state,"  do  not  distinguish  any  one  of  them  spe- 
cifically. The  home  secretary  is  technically  the  first  secre- 
tary of  state. 

Equally  great  transformation,  though  rather  in  the  oppo- 
site direction,  has  overtaken  the  other  great  offices  of  the 
old  king's  council.  The  lord  high  chancellor  remains,  with 
his  original  rank,  and  with  his  original  functions  changed 
only  in  part.  The  lord  high  treasurer  and  the  lord  high 
admiral  disappeared  altogether  early  in  the  eighteenth  cen- 
tury,  both   offices    being   put   into    commission.     The   lord 


THE  ADMINISTRATIVE  BOARDS  477 

president  of  the  council  and  the  lord  privy  seal  still  exist  as 
offices,  the  first  with  formal  duties  infrequently  occurring,  the 
latter  with  none.  These  two  offices  are  treated  as  sinecures 
and  given  to  members  of  the  house  of  lords,  almost  never  to 
a  commoner,  who  are  desired  in  the  cabinet  but  who  are  un- 
willing to  undertake  the  duties  of  an  active  office.  The 
office  of  chancellor  of  the  duchy  of  Lancaster  is  also  a  sine- 
cure, and  is  often  used  in  the  same  way  for  a  commoner, 
The  treasury  is  nominally  "  in  commission  "  in  the  hands  of 
four  lords  of  the  treasury,  but  the  practical  duties  are  per- 
formed by  the  chancellor  of  the  exchequer,  so  that  the  four 
lordships  are  also  sinecures,  the  prime  minister  usually  being 
the  first  lord  and  three  of  the  whips  of  the  party  in  office 
the  junior  lords. 

Most  indicative  of  the  character  of  changes  since  the  mid- 
dle of  the  century  are  the  departments  known  as  "  boards," 
for  the  business  of  those  which  are  older  than  1850  has 
shown  as  great  expansion  as  that  of  those  which  have  been 
more  recently  created.  The  term  "  board  "  is  really  a  mis- 
nomer, for  no  board  exists  except  in  legal  theory ;  each  is 
really  an  executive  department,  like  the  American  depart- 
ment of  agriculture,  with  a  minister  at  its  head,  who  is  re- 
cently almost,  though  not  quite,  always  a  member  of  the 
cabinet.  A  considerable  part  of  the  work  of  the  boards  is 
not  administration  in  the  strict  sense,  but  supervision  of 
the  activities  of  local  bodies.  The  oldest  of  these  depart- 
ments is  the  board  of  trade,  which  goes  back  to  a  not  con- 
tinuous history  in  the  seventeenth  century ;  it  was  given  a 
new  organization  and  a  new  name,  the  board  of  trade  and 
plantations,  in  1696,  and  was  again  reorganized  as  the  com- 
mittee of  council  for  trade  in  1786.  Since  that  date  various 
minor  changes  have  been  made,  of  name  in  1862  and  of 
organization  in  1867,  and  the  field  of  its  work  has  been  en- 
larged, though  it  lost  its  major  connection  with  the  colonies 
when  they  were  transferred  to  the  secretary  of  state  for  war 
in  1801.     The  board  of  education  began  also  as  a  committee 


478  DEMOCRATIC  ENGLAND 

of  the  privy  council  in  1839.  The  vice-president  of  the 
council  at  the  head  of  the  committee  was  made  a  minister 
responsible  to  parliament  in  1856,  and  in  1899  the  committee 
was  reorganized  as  a  board  with  a  president.  The  local 
government  board,  whose  work  has  already  been  indicated, 
was  formed  in  1871,  as  the  successor  of  the  poor  law  board 
which  had  been  established  in  1847.  The  board  of  works 
was  created  in  1851,  and  the  board  of  agriculture  in  1889. 
A  vast  amount  of  detail  is  looked  after  by  these  boards 
in  the  course  of  the  year,  and  much  of  it  of  great  importance. 
This  fact  has  been  recently  recognized  in  the  case  of  the 
board  of  trade  and  the  local  government  board  by  making 
the  salary  of  their  presidents  equal  to  that  of  a  secretary 
of  state,  £5,000. 

The  account  of  the  British  cabinet  and  its  activities,  as 
given  in  this  chapter,  is  no  doubt  incomplete.  The  fact 
should  not  be  overlooked,  however,  that  it  cannot  be  the 
purpose  of  a  book  of  this  kind  to  explain  fully  what  the 
cabinet  is  and  how  it  operates.  That  duty  belongs  to  books 
descriptive  of  the  English  government  of  today.  The  task 
undertaken  here  is  to  record  changes  which  have  occurred, 
and  to  describe  tendencies  which  seem  to  be  going  on,  and 
which  may  have  constitutional  consequences. 

A  short  time  before  the  adoption  of  the  third  reform  bill, 
a  question  arose  which  for  a  time  attracted  much  public 
interest,  relating  not  directly  to  the  constitution  of  England 
but  to  that  of  the  empire  —  the  question  of  imperial  federa- 
tion. The  promise  which  this  movement  held  out  in  its 
early  history,  that  some  form  of  closer  political  organization 
could  be  found  for  the  empire,  has  not  been  fulfilled  in  the 
way  proposed.  General  interest  in  the  plan  fell  away  in 
the  later  eighties  and,  though  it  has  been  revived  again  at 
intervals,  no  concrete  scheme  of  federation  has  been  proposed 
that  has  commanded  any  great  body  of  support.  On  the 
other  hand,  events,  not  the  result  of  design  and  not  acting 
as    parts    of    a   considered   plan,    have    really    brought    the 


A  NEW  CONSTITUTIONAL  PLAN  479 

empire  more  nearly  into  unity,  for  a  time  and  for  some 
things  at  least,  and  have  led  to  some  suggestions  of  value  as 
to  constitutional  machinery.  There  is  at  the  moment  of  this 
writing  a  fair  prospect  that  there  may  grow  out  of  experi- 
ence some  method,  which  may  properly  be  called  constitu- 
tional, of  making  decisions  as  to  common  action  throughout 
the  empire  in  a  good  number  of  the  activities  which  belong 
to  government.  An  unintended  outcome  of  experience  is 
more  likely  to  lead  to  a  practicable  result,  and  is  more  in 
line  with  the  historical  growth  of  the  constitution,  than 
the  adoption  of  a  ready-made  plan  as  proposed  in  the  early 
stages  of  the  movement. 

While  as  yet  no  constitutional  result  has  been  reached 
which  can  be  regarded  with  any  certainty  as  permanent, 
there  are  many  reasons  why  the  history  of  the  movement 
and  its  more  probable  results  should  be  briefly  considered: 
a  constitution  for  the  whole  empire  is  a  logical  outgrowth 
of  the  past,  and  the  next  forward  step  naturally  to  be  ex- 
pected in  the  long  development  we  have  been  following;  so 
much  sound  preparation  and  progress  have  already  been 
made  that  it  does  not  now  seem  likely  to  be  broken  off  except 
by  an  interruption  of  some  violence ;  no  practical  difficulty 
seems  to  stand  in  the  way  more  serious  than  those  which 
faced  the  American  constitutional  convention  of  1787.  It 
may  be  added  that  the  powerful  appeal  to  the  imagination 
which  is  made  by  the  idea  of  a  united  government,  bringing 
together  in  one  such  large  portions  of  every  continent,  is 
not  merely  an  element  of  interest  in  the  plan,  but  also  makes 
its  accomplishment  easier. 

If  Professor  Seeley's  dictum  that  England  conquered  half 
the  world  in  a  fit  of  absent-mindedness  is  an  exaggeration, 
it  is  nevertheless  historically  true  that  the  British  empire 
was  slowly  formed  in  the  eighteenth  and  nineteenth  centuries 
with  no  prevision  of  the  result  which  was  actually  reached, 
and  no  definite  intention  to  bring  it  about.  The  process 
was  for  a  long  time  drift  and  accident,  and  in  the  constitu- 


480  DEMOCRATIC  ENGLAND 

tional  field  also  England  learned,  only  by  slow  degrees  and 
by  hard  experiences,  how  to  govern  her  colonies.  We  some- 
times think  that  she  ought  to  have  learned  the  lesson  from 
her  experience  with  the  thirteen  colonies,  ending  in  the 
American  revolution,  but  it  is  clear  that  she  did  not.  In 
1791  parliament  gave  a  new  constitution  to  Canada,  which 
was  formed  upon  the  same  lines  as  the  worst  of  the  govern- 
ments of  the  thirteen  colonies,  of  those  which  had  been  the 
least  satisfactory  in  operation.  Two  lessons  England  did 
learn  from  her  experience  in  America,  but  neither  to  her  ad- 
vantage nor  to  that  of  the  colonies.  One  was  that  she  must 
not  attempt  to  make  the  colonies  share  in  the  burden  of 
imperial  defence,  with  the  result  that  since  that  date  she  has 
had  to  bear  more  than  her  fair  share  of  this  burden.  The 
other  was  that  to  grant  concessions  to  a  colony,  to  give  it 
the  power  to  govern  itself,  would  be  certain  to  lead  to  the 
loss  of  the  colony.  This  was  the  prevailing  belief  during 
the  first  half  of  the  nineteenth  centur}',  and  it  was  only  in 
the  teeth  of  it  that  the  first  concessions  of  real  self-govern- 
ment were  made. 

The  beginning  of  change  is  to  be  found  in  the  results  of 
the  Canadian  rebellion  of  1837  —  a  rebellion  against  the 
constitution  of  1791,  to  secure  a  greater  measure  of  self- 
government.  This  was  granted  in  the  early  years  of  the 
next  decade,  but  only  with  reluctance  and  fear  of  the  result. 
Shortly  after,  similar  privileges  were  granted  to  Australian 
colonies,  but  with  the  same  apprehensions.  For  the  first 
two  decades  after  1850  it  was  the  belief  of  practically  all 
public  men  in  England  that  the  colonies  were  steadily  ad- 
vancing towards  independence,  and  that  it  was  the  duty  of 
England  to  grant  this  as  soon  as  it  should  be  demanded. 
Before  1870,  however,  students  of  colonial  affairs  had  begun 
to  see  that  the  results  apprehended  had  not  followed  the 
grant  of  self-government,  and  a  perception  of  the  real  re- 
sults which  had  followed  was  the  first  strong  impulse  in  the 
turn  of  the  tide.     This  perception  may  be  best  indicated 


CHANGED  VIEW  OF  COLONIES  481 

in  the  words  of  Herman  Merivale,  in  the  second  edition  of 
his  Oxford  lectures  on  colonization,  published  in  1861 : 
"  None,  but  those  who  have  traced  it,  can  realize  the  sudden 
spring  made  by  a  young  community  under  its  first  release 
from  the  old  tie  of  subjection.  .  .  .  The  cessation,  as  if  by 
magic,  of  the  old  irritant  sores  between  the  colony  and  the 
mother  country  is  the  first  result.  Not  only  are  they  at  an 
end,  but  they  seem  to  leave  hardly  any  traces  in  the  public 
mind  behind  them.  Confidence  and  affection  towards  the 
'  home '  .  .  .  seem  to  supersede  at  once  distrust  and  hos- 
tility. Loyalty,  which  was  before  the  badge  of  a  class  sus- 
pected by  the  rest  of  the  community,  becomes  the  common 
watchword  of  all."  These  words  express  the  universal  judg- 
ment of  today,  but  in  1861  the  discovery  was  new  and  was 
only  beginning  to  affect  opinion  in  England. 

The  second  impulse  towards  a  change  of  attitude  in  England 
was  a  reaction  against  the  colonial  doctrines  of  the  Man- 
chester school  of  economists,  which  began  about  1870.  These 
teachings  obtained  their  extreme  expression  in  a  book  entitled 
The  Empire,  published  by  Professor  Goldwin  Smith  in  1863. 
In  it  he  advocated  practically  the  immediate  dissolution  of 
the  empire  and  the  abandonment  of  the  colonies  to  them- 
selves. Public  interest  was  awakened,  and  the  reaction 
brought  to  the  point  of  public  expression  by  a  series  of  inci- 
dents in  1869  and  1870,  which  seemed  to  indicate  that  the 
government  of  the  time,  Mr.  Gladstone's  first  ministry,  was 
about  to  put  the  doctrines  of  the  Manchester  school  into 
actual  operation,  and  to  break  off  the  political  connection 
between  the  mother  country  and  the  colonies.  How  far  this 
opinion  represented  the  real  intentions  of  the  ministry  has 
never  been  thoroughly  investigated.  There  is  no  question 
about  the  public  judgment.  It  was  clearly  and  fully  ex- 
pressed in  favor  of  the  retention  of  the  colonies,  and  it 
brought  about  an  immediate  and  complete  change  in  what 
it  had  judged  to  be  the  policy  of  the  cabinet. 

It  was  in  connection  with  this  crisis  that  the  proposal  of 


482  DEMOCRATIC  ENGLAND 

imperial  federation  was  first  made  in  practicable  form.  It 
was  made  by  Mr.  Edward  Jenkins,  in  two  articles  in  the 
Contemporary  Review  for  January  and  April,  1871.  The 
idea  had  been  vaguely  discussed  before,  but  interest  in  it  now 
became  more  active  and  definite.  In  1875  it  was  taken  up 
by  Mr.  W.  E.  Forster,  one  of  the  leaders  of  the  liberal 
party,  as  being  in  his  judgment  a  policy  which  ought  to  be 
adopted  b}'  the  nation.  In  1884  the  Imperial  Federation 
League  was  organized  in  London,  after  a  great  public  meet- 
ing at  which  a  large  number  of  distinguished  public  men, 
both  of  England  and  the  colonies  and  of  various  political 
views,  gave  the  plan  their  sanction.  Mr.  Forster  was  the 
first  president  of  the  League,  and  the  earl  of  Rosebery  the 
second.  It  began  its  work  with  much  vigor;  it  established 
a  monthly  magazine  as  its  organ,  called  Imperial  Federation; 
and  it  was  at  the  suggestion  of  the  League  that  the  first 
imperial  conference  of  colonial  representatives  was  called 
to  meet  in  London  in  1887.  As  an  organization  this  repre- 
sents the  high  point  of  the  League's  success ;  it  continued 
active  for  a  few  }Tears,  but  developed  considerable  differences 
of  opinion  among  its  members  and  was  dissolved  by  common 
consent  in  1893. 

In  the  meantime  another  change  in  feeling  about  the 
colonies  had  taken  place  in  England,  beginning  after  1850, 
which  may  have  more  influence  upon  the  future  of  the  empire 
and  its  organization  than  any  arguments  for  formal  federa- 
tion. The  change  is  one  which  affects  the  idea  of  empire 
itself.  By  an  unnoticed  evolution,  which  has  left  few  marks 
by  which  it  can  be  traced,  the  word  empire,  for  the  greater 
portion  of  the  English  people,  has  ceased  any  longer  to  mean 
what  it  chiefly  did  during  its  first  use  in  histor}',  dominion 
and  power,  or  to  mean  what  it  did  during  many  generations 
of  English  history,  trade  and  the  accumulation  of  wealth. 
The  human  element  has  come  to  the  fore,  and  the  idea  of 
obligation.  Empire  is  not  now  felt  to  be  so  much  geo- 
graphical expansion  as  expansion  of  the  race.     The  new  con- 


THE  NEW  IDEA  OF  EMPIRE  483 

ception  is  not  so  much  of  increased  power  or  wealth  at  home, 
as  of  new  Englands  in  many  regions  of  the  globe,  filled  with 
prosperous  and  patriotic  Englishmen,  and  probably  destined 
in  the  future  greatly  to  exceed  the  parent  state  in  wealth  and 
population.  Empire  means  less-  the  territories  which  the 
Englishman  occupies,  wherever  they  may  lie  on  the  map,  than 
the  political  liberty  and  freedom  of  opportunity  for  all  which 
he  is  there  working  out,  or  the  training  in  these  best  of  his 
possessions  which  he  is  imparting  to  inferior  races.  In  re- 
flex action,  the  ease  with  which  thoroughgoing  democratic 
institutions,  like  the  referendum  or  elective  upper  chambers, 
have  been  engrafted  upon  the  British  constitution  in  the 
colonies,  and  their  harmonious  working  with  it,  have  had 
no  small  influence  at  home.  Cabinet  government  and  minis- 
terial responsibility  appear  to  work  as  well  in  the  colonies 
as  at  home  and  to  be  affected  by  the  same  influences.  Union 
based  upon  common  institutions  and  conceptions  like  these  is 
stronger  than  any  which  depends  upon  formal  laws  and  con- 
stitutions. If  these  can  be  maintained,  a  federal  government 
is  not  necessary.  The  method  of  councils  and  conference, 
which  has  demonstrated  in  the  recent  war  its  efficiency  on  so 
vast  a  scale,  is  all  that  is  needed.  It  must  be  added  that  in 
a  new  empire  of  this  kind,  which  necessarily  implies  the 
entire  local  independence  of  the  different  units,  the  personifi- 
cation of  the  union  in  a  personal  sovereign,  a  natural  rally- 
ing point  of  affection  and  loyalty,  is  of  high  value.  Many 
English  students  of  the  constitution  believe  they  see  a  new 
future  for  the  monarchy  in  its  imperial  position. 

The  method  of  council  and  conference  has  already  been 
tested  for  a  generation  in  the  management  of  imperial  affairs, 
it  must  be  confessed,  however,  with  less  development  than 
might  naturally  be  expected.  The  first  formal  conference 
met  in  May,  1887.  The  colonial  representation  wras  com- 
posed partly  of  ministers  in  office  and  partly  of  non-ministers. 
The  chief  subjects  discussed  were  imperial  defence  and  inter- 
communication, especially  postal  and  telegraphic,  and  these 


484  DEMOCRATIC  ENGLAND 

have  remained  the  chief  subjects  of  discussion  in  all  later 
conferences,  with  others  similar,  like  international  trade  and 
tariffs,  patents  and  copyrights,  and  ship  subsidies.  Neither 
this  conference  nor  any  later  one  assumed  any  legislative 
power,  but  made  recommendations  only.  In  1889  and  in  1891 
Lord  Salisbury's  government  declined  to  call  another  confer- 
ence, and  the  second  did  not  meet  until  1897.  But  the 
colonies  themselves  held  a  trade  conference  at  Ottawa  in 
1894,  at  which  the  home  government  was  represented.  In 
1897  the  representatives  were  the  prime  ministers,  who  were 
present  from  all  the  self-governing  colonies  of  the  empire, 
eleven  in  number.  In  the  third  conference,  in  1902,  Mr. 
Chamberlain,  the  colonial  secretary,  urged  strongly  larger 
contributions  from  the  colonies  to  imperial  defence,  and  de- 
clared that  England  was  ready  to  allow  them  in  return  a 
voice  in  determining  imperial  polic}\  This  conference 
adopted  a  resolution  in  favor  of  regular  meetings  at  fixed 
intervals,  and  the  resolution  was  given  effect  by  the  con- 
ference of  1907,  which  adopted  a  constitutional  organization 
with  a  permanent  staff,  members  ex  officio,  and  meetings  once 
in  four  years.  The  conference  would  have  gone  farther  in 
the  way  of  organization  but  for  the  strong  objection  of 
Canada. 

The  conference  of  1911  discussed  more  fully  than  any 
previous  conference  proposals  for  imperial  organization, 
which  were  in  themselves  more  definite  than  had  been  before 
brought  forward,  but  without  constitutional  result.  The 
war  interrupted  the  regular  course  of  conference  meetings, 
but  it  led  to  another  form  of  imperial  council,  as  we  shall 
see,  of  quite  as  great  promise  for  the  future.  The  course  of 
conference  discussions  shows  clearly  that  the  one  great  neces- 
sity of  union  is  a  common  imperial  policy  in  foreign  affairs, 
and  it  shows  clearly  that  a  practicable  method  for  the  forma- 
tion of  such  a  policy,  in  which  all  parts  of  the  empire  shall 
have  an  equal  proportionate  share,  is  the  one  serious  un- 
solved problem  that  stands  in  the  way  of  this  great  advance 


IRISH  HOME  RULE  485 

in  constitution  making.  The  problem  is,  however,  hardly  a 
more  serious  one  in  the  constitution  of  the  empire  than  in  the 
constitution  of  the  kingdom.  The  one  field  of  government's 
activity  over  which  democracy  seems  unable  to  exercise  any 
effective  control,  for  a  supervision  of  which  it  has  not  yet 
been  able  to  discover  any  practicable  machinery,  is  the  field 
of  foreign  affairs.  Two  great  obstacles  lie  in  the  way  and 
seem  to  be  irremovable,  the  need  of  secrecy  in  some  most 
essential  matters,  and  the  need  of  swift  decisions. 

Closely  allied  in  some  respects  to  the  question  of  imperial 
federation  is  the  question  of  Irish  home  rule,  with  this  differ- 
ence. Imperial  federation,  or  any  form  of  common  govern- 
ment for  the  empire,  if  successfully  established,  is  a  long 
forward  step  in  the  history  of  constitutions,  and  likely  to  be 
of  enormous  advantage  as  example  and  model  in  the  future 
of  the  world.  Any  plan  for  Irish  home  rule,  or  even  for 
dominion  status,  is  likely  to  follow  a  well-beaten  path,  with 
no  very  instructive  deviation.  Even  if  the  plan  adopted 
should  involve  as  a  consequence  the  federation  of  the  whole 
British  Isles,  which  does  not  seem  likely,  it  is  not  easy  to  see 
where  the  opportunity  for  creative  originality  can  be  found. 

Bibliographical  Note. —  G.  B.  Adams,  Influence  of  the 
American  Revolution  on  England's  Government  of  Her  Colonies, 
Repts.  Am.  Hist.  Association,  1896,  I.  373;  Origin  and  Results  of 
the  Imperial  Federation  Movement,  Proc.  Hist.  Soc.  Wisconsin, 
1898,  93.  H.  E.  Egerton,  A  Short  History  of  British  Colonial 
Policy,  1897.  G.  L.  Dickinson,  The  Development  of  Parliament 
in  the  Nineteenth  Century,  1895.  W.  E.  Gladstone,  Gleanings 
of  Past  Years,  1879.  Sir  T.  E.  May,  The  Constitutional  His- 
tory of  England,  Vol.  III.,  by  Francis  Holland,  1812.  J.  Mor- 
ley,  The  Life  of  W.  E.  Gladstone,  3  vols.,  1903.  C.  Seymour, 
Electoral  Reform  in  England  and  Wales,  1915. 


CHAPTER  XX 
THE  RECENT  YEARS 

The  first  years  of  the  parliament  which  was  elected  in 
January,  1906,  seemed  to  promise  the  opening  of  a  new 
epoch  in  English  constitutional  history,  or  at  least  a  time 
of  reversion  to  an  earlier  type.  Two  of  the  tendencies  notice- 
able during  the  previous  half  century  appeared  to  be  declin- 
ing: the  cabinet  seemed  to  be  returning  to  a  dependence 
upon  the  house  of  commons,  and  the  house  of  lords  seemed 
about  to  resume  its  older  place  in  legislation.  It  is  now 
possible  to  say  that  the  apparent  change  was  not  a  real  one, 
but  the  deviation  from  the  straight  line  of  development  is 
worth}'  of  note. 

It  is  true  that  in  some  respects,  down  to  the  outbreak  of 
the  war,  the  cabinet  was  obliged  to  defer  to  the  opinion  of 
the  house,  as  many  in  1905  thought  it  would  never  do  again. 
This  at  least  is  the  way  in  which  the  fact  would  have  been 
described  by  a  mid-Victorian  writer,  who  would  have  seen  it 
particularly  after  the  second  election  of  1910.  A  study 
of  details,  however,  shows  that  the  dependence  was  more 
apparent  than  real.  In  the  first  place,  what  it  affected  was 
not  the  general  policy  of  the  ministry,  nor  the  chief  features 
of  the  legislation  which  the  cabinet  proposed.  In  these  re- 
spects the  cabinet  was  as  supreme  as  it  had  been  during 
the  past  dozen  years,  and  the  house  had  as  little  power  of 
alteration.  It  was  comparatively  minor  details  which  were 
affected.  In  the  second  place,  such  dependence  as  the  cabi- 
net showed  was  not  upon  the  house  of  commons  as  a  whole, 
as  an  organized  body,  but  it  was  dependence  upon  the  party 
subdivisions,  the  more  or  less  independent  groups,  among  its 
own  supporters. 

486 


LIBERAL  PARTY  DIVISIONS  487 

In  continental  states  having  parliamentary  government, 
the  tendency  of  liberal  parties,  of  parties  of  the  general 
left,  to  split  up  into  groups  has  long  been  manifest.  Sub- 
division seems  to  be  a  natural  characteristic  of  parties  whose 
chief  programme  is  change  and  reform.  Some  groups  wish 
to  go  faster  than  others  do ;  some  groups  emphasize  strongly 
a  particular  change  in  which  others  are  not  as  interested. 
In  all  these  parties  it  is  difficult  to  maintain  a  common  pro- 
gramme and  united  voting  strength  except  by  concession 
and  compromise,  and  compromise  is  usually  not  upon  the 
main  items  of  the  party  programme,  upon  which  all  divisions 
are  apt  to  agree,  but  upon  subordinate  details.  The  more 
divided  the  party  is,  the  greater  is  the  necessity  of  com- 
promise, and  the  greater  the  opportunity  to  obtain  its  de- 
mands which  is  offered  to  the  subordinate  group,  more  de- 
voted, as  is  often  true,  to  its  own  peculiar  reform  than  to  the 
programme  of  the  party  as  a  whole. 

Down  to  the  end  of  the  nineteenth  century,  while  a  tend- 
ency in  the  liberal  party  to  divide  into  groups  was  not  want- 
ing in  England,  it  had  no  effect  upon  actual  legislation. 
During  most  of  the  last  quarter  of  the  century  the  party 
was  out  of  office,  and  had  no  opportunity  to  write  its  policy 
in  the  statute  book.  The  one  question  which  brings  out 
most  clearly  the  evidence  and  influence  of  subordinate  groups, 
the  Irish  home  rule  question,  the  party  failed  to  settle  while 
in  power.  In  the  house  of  commons  elected  in  January, 
1906,  the  liberal  party  had  so  overwhelming  a  majority, 
well  over  300,  and  more  than  150  even  if  the  Irish  national- 
ists voted  against  them,  and  subdivision  into  groups  was  still 
so  incomplete,  that  it  was  not  necessary  to  carry  the  policy 
of  compromise  very  far.  Still  the  ministry  did  not  always 
feel  secure  of  its  position,  and  the  party  showed  an  inde- 
pendence and  a  spirit  of  criticism  not  unlike  a  return  to 
earlier  times.  After  the  elections  of  January  and  December, 
1910,  the  strength  of  the  independent  element  was  greatly 
increased.     In  both  those  elections  the  liberal  party  proper 


488  THE  RECENT  YEARS 

lost  heavily,  as  compared  with  1906,  and  the  unionists,  the 
term  now  coming  into  use  as  the  common  name  for  the  united 
conservatives  and  liberal  unionists,  gained,  so  that  these  two 
parties   stood  in   the  house   in   almost   equal   numbers,   the 
unionists  at  times  even  having  two  or  three  votes  more  than 
the  liberals.      The  liberal  cabinet  remained  in  office,  but  it 
was  entirely  dependent  upon  the  subordinate  groups,  now 
stronger  and   better  organized  than  before,  not  merely  to 
maintain  itself  in  office,  but  to  carry  its  measures  into  law. 
This   is   the   period,   then,   from   February,   1910,   to   the 
summer  of  191 4,  which  is  to  be  studied  in  recent  English 
history  for  present   tendencies,  especially   for  the  effect  of 
party    subdivision    upon    cabinet    government.     Apparently 
it  is  not  possible  to   say   that   there  was    a  return   to  the 
position  in  which  the  cabinet  stood  in  relation  to  the  house 
in  1870.     Its  real  power  of  dictation  to  the  house  was  not 
modified.     There  was  more  effective  criticism  of  government 
measures  in  matters  of  detail  than  there  had  been  during  the 
ten   years   of   the   conservative   government   which    followed 
1895 ;  but  the  really  effective  criticism  was  not  that  of  the 
house,  nor  of  the  opposition,  in  the  sense  of  the  writers  of 
fifty  years  ago,  but  of  the  government's  own  party,  or  of 
the  groups  in  general  alliance  with  it.     At  the  same  time  it 
was  made  clear  that  the  ultimate  controlling  power  was  the 
opinion  in  the  constituencies,  now  well  supplied  with  means 
of    expressing   itself.     If    we    may    judge    by    the    opinions 
voiced  in  the  reviews  and  leading  political  weeklies  between 
1906  and  1914s  English  students  of  their  own  political  life 
saw  no  slackening  of  the  tendencies  noticed  in  the  last  chapter 
as    modifying    cabinet    government.     On    the    contrary,    a 
recognition  of  these  tendencies  and  of  the  probable  constitu- 
tional results  was  more  general  than  it  had  been  at  any  time 
in  the  nineteenth  century. 

The  resumption  of  its  legislative  position  by  the  house 
of  lords,  after  the  election  of  1906,  was  more  real.  After 
ten   years*  possession  of  power,   the   unionist   conservative 


THE  LORDS  RESUME  POWER  489 

party  had  been  overwhelmingly  defeated.  The  house  of 
lords,  however,  seemed  to  take  the  ground  that  the  great 
popular  victory  did  not  give  the  liberal  party  authority  to 
carry  into  immediate  effect  their  whole  programme.  The 
upper  house  resumed  in  full  force  its  right  of  suspensive 
veto,  and  demanded  in  effect  that  the  will  of  the  nation 
should  be  conclusively  shown  on  the  more  important  con- 
tentious measures  of  reform  which  were  proposed.  While 
it  cannot  be  asserted  that  the  house  of  lords  went  beyond 
the  function  of  a  brake  upon  the  wheel  assigned  to  it  in  the 
preceding  half  century,  it  can  be  said  that  it  seemed  to  be 
trying  to  find  out  what  limit  there  was  upon  its  action  in  that 
direction.  The  matter  must  not  be  numerically  exaggerated. 
Out  of  213  government  bills  between  1906  and  1910,  eighteen 
failed  to  pass.  The  lords  rejected  only  a  part  of  these, 
but  they  amended  others  in  such  essential  respects  that  they 
were  dropped.  Five  acts  which  the  majority  in  the  house 
of  commons  regarded  as  of  prime  importance  were  among 
these:  an  education  bill,  a  plural  voting  bill,  a  Scotch  land- 
holding  bill,  a  licensing  bill,  and  the  government  budget  of 
the  year  1909.  So  that  in  substance  the  action  of  the  lords 
was  more  of  an  interference  with  liberal  plans  of  legislation 
than  it  appears  to  be  when  measured  numerically. 

It  was  the  rejection  of  the  government's  finance  bill  in 
1909  that  led  to  a  constitutional  settlement  of  the  question 
raised  by  the  house  of  lords.  The  budget  involved  a  reassess- 
ment of  land  values,  a  taxation  of  the  unearned  increment, 
and  in  general  a  heavier  taxation  of  wealth.  It  excited 
intense  opposition  among  the  classes  naturally  belonging  to 
the  conservative  party.  The  right  of  the  house  of  lords 
to  amend  a  money  bill  had  been  lost,  but  the  right  to  reject 
was  recognized.  It  was  generally  felt,  however,  that  to  reject 
the  bill,  leaving  the  national  finances  of  the  year  in  con- 
fusion, was  an  extreme  act  and  almost  a  direct  challenge  to 
the  house  of  commons  to  define  its  own  power  and  the  power 
of  the  lords  as  well.     It  was  also  pointed  out  by  some  that 


490  THE  RECENT  YEARS 

in  this  rejection  the  lords  were  really  claiming  new  powers. 
If  the  government,  in  consequence  of  their  action,  reintro- 
duced the  budget  without  the  clauses  to  which  they  objected, 
the  upper  house  would  have  established  a  right  of  indirectly 
amending  a  mone}'  bill ;  and,  if  the  government  chose  to  ap- 
peal to  a  new  general  election,  it  would  have  gained  the  right 
of  forcing  a  dissolution  of  parliament.  The  assertion  of 
the  lords  that  some  of  the  clauses  of  the  bill  were  legislative 
and  so  cases  of  "  tacking,"  which  gave  them  a  right  to  reject, 
was  not  convincing  to  many.  Almost  from  the  beginning  of 
this  parliament  the  proposal  had  been  heard  in  the  commons, 
and  more  frequently  outside,  that  a  definite  limit  ought  to  be 
placed  upon  the  veto  right  of  the  upper  chamber,  and  in 
June,  1907,  the  necessity  was  affirmed  by  a  large  majority 
of  the  house  of  commons  in  a  formal  resolution  proposed  by 
the  prime  minister,  but  no  further  action  was  taken  at  the 
time. 

The  lords  rejected  the  bill  on  November  30,  1909.  Two 
days  later  the  house  of  commons  declared  the  action  to  be  a 
breach  of  the  constitution  and  a  usurpation  of  privilege. 
Parliament  was  speedily  dissolved,  and  a  general  election  held 
in  January,  1910.  The  election  reduced  the  number  of  liber- 
als proper  in  the  house  to  274,  and  increased  the  unionist  vote 
to  272,  leaving  the  balance  of  power  in  the  hands  of  the  41 
labor  members  and  the  82  Irish  nationalists.  These  groups 
were,  however,  equally  determined  with  the  liberals  that  the 
veto  power  of  the  lords  should  be  limited,  and  even  more 
insistent  that  this  question  should  be  dealt  with  in  advance 
of  the  financial  difficulty.  To  meet  this  demand,  resolutions 
embodying  the  points  of  their  proposed  bill  were  introduced 
by  the  government  and  adopted  on  April  14.  With  these 
resolutions  and  a  statement  by  Mr.  Asquith  of  what  the 
ministry  would  do  if  the  lords  refused  to  accept  the  plan 
proposed,  the  groups  supporting  the  government  were  satis- 
fied, and  the  finance  bill,  the  same  as  that  of  1909,  was  voted, 
and    was    now    immediately    agreed    to    by    the    lords.     The 


THE  LORDS  TO  BE  COERCED  491 

course  of  action  on  the  veto  bill  was  interrupted  by  the  death 
of  King  Edward  VII  in  May,  and  a  general  wish  not  to  force 
matters  to  an  extreme  crisis  on  a  fundamental  question  of 
the  constitution  at  the  beginning  of  a  new  reign. 

To  avoid  such  an  issue,  an  interesting  experiment  was 
tried,  not  unlike  those  proposed  by  Queen  Victoria  and  re- 
ferred to  above.  A  conference  was  arranged  between  lead- 
ers of  both  the  great  parties,  members  of  both  houses,  four 
from  each  party,  to  see  if  action  which  both  sides  would 
accept  could  not  be  agreed  upon.  Many  meetings  of  the 
conference  were  held  during  the  summer  and  early  autumn 
without  success,  and  early  in  November  it  abandoned  the 
task.  This  method  of  trying  to  settle  a  serious  disagreement 
was  tried  again,  with  as  little  result,  on  the  Irish  question, 
when  King  George  summoned,  in  July,  1914,  a  conference 
at  Buckingham  Palace  of  the  speaker  of  the  house  of  com- 
mons and  two  representatives  each  from  the  ministerialists, 
the  opposition,  the  nationalists,  and  the  Ulsterites,  which  held 
several  meetings.  Though  the  method  has  not  as  yet  ob- 
tained a  success  equal  to  its  promise,  it  is  not  felt  that  the 
promise  has  proved  fallacious,  and  it  will  probably  be  made 
use  of  in  the  future. 

The  failure  of  the  conference  led  at  once  to  the  extreme 
action  foreshadowed  to  the  house  by  Mr.  Asquith  in  April. 
The  cabinet  advised  the  king  to  dissolve  parliament,  and  pre- 
sented at  the  same  time  to  the  king,  as  became  known  some 
time  later,  a  memorandum  asking  him  to  agree  in  case  of  a 
favorable  election  to  create  peers  enough  to  carry  the  veto 
bill  through  the  house  of  lords,  if  that  should  ultimately 
prove  to  be  the  only  way  to  save  the  bill.  As  this  memoran- 
dum stands  in  interesting  relation  to  earlier  incidents  of  this 
history'  and  is  in  itself  constitutionally  significant,  it  should 
be  quoted  in  full:  "  His  Majesty's  Ministers  cannot  take  the 
responsibility  of  advising  a  dissolution  unless  they  may 
understand  that,  in  the  event  of  the  policy  of  the  government 
being  approved  by  an  adequate  majority  in  the  new  House 


492  THE  RECENT  YEARS 

of  Commons,  His  Majesty  will  be  ready  to  exercise  his  con- 
stitutional powers,  which  may  involve  the  prerogative  of 
creating  peers,  if  needed,  to  secure  that  effect  shall  be  given 
to  the  decision  of  the  country.  His  Majesty's  Ministers  are 
fully  alive  to  the  importance  of  keeping  the  name  of  the  king 
out  of  the  sphere  of  party  and  electoral  controversy.  They 
take  upon  themselves,  as  is  their  duty,  the  entire  and  ex- 
clusive responsibility  for  the  policy  which  they  will  place 
before  the  electorate.  His  Majesty  will  doubtless  agree  that 
it  would  be  inadvisable,  in  the  interests  of  the  state,  that 
any  communication  of  the  intentions  of  the  crown  should 
be  made  public  unless  and  until  the  actual  occasion  should 
arise." 

Nothing  so  extreme  had  ever  been  asked,  however,  of  any 
earlier  sovereign.  The  creation  of  twelve  peers  was  sufficient 
in  Queen  Anne's  time.  Fifty  would  have  been  enough  in 
1832.  Now  the  estimated  number  of  necessary  new  crea- 
tions was  400.  Naturally  the  opposition  lords  were  excited 
and  angry,  both  when  they  only  suspected  such  cabinet  action 
and  when  it  became  known.  The  cabinet's  memorandum 
was  called  an  ultimatum,  and  the  action  was  spoken  of  as 
coercing  the  king.  Very  generally  it  was  believed  that,  if 
the  extreme  steps  were  actually  taken,  it  would  be  the  ruin 
of  the  peerage.  The  king,  after  full  discussion  of  the  ques- 
tion with  the  prime  minister  and  with  Lord  Crewe,  leader  of 
the  government  party  in  the  house  of  lords,  gave  the  pledge 
asked  for.  The  election,  held  in  December,  1910,  left  parties 
as  they  were  in  the  house  of  commons.  None  of  the  main 
groups  was  increased  or  decreased  by  as  many  as  four  votes. 
The  result  was  regarded,  however,  as  authorizing  the  min- 
istry to  go  on  to  limit  the  powers  of  the  upper  chamber. 

In  the  meantime  proposals  for  the  reconstruction  of  the 
house  of  lords  had  been  made  by  members  of  it,  and  even  by 
the  house  itself  in  formal  resolutions.  They  were  hardly  less 
drastic  than  those  of  the  government  but  differed  from  them 
in  more  or  less  important  details,  in  dealing  largely  with  re- 


THE  PARLIAMENT  BILL  493 

lations  between  the  two  houses  and  especially  in  emphasizing 
the  plan  of  submitting  disputes  between  the  houses  to  a 
decision  of  the  people  by  a  referendum.  These  proposals 
indicated  at  least  a  conviction  on  the  part  of  the  lords  that 
extensive  constitutional  changes  could  not  be  avoided.  In 
the  new  house  of  commons  the  prime  minister  immediately 
reintroduced  the  parliament  bill  of  the  previous  year,  and  it 
passed  the  house  in  May,  1911.  At  first  the  lords  attempted 
to  amend  the  bill,  but  when  it  became  evident  that  their 
amendments  would  not  be  accepted,  and  when  it  was  made 
clear  that  the  king  would  follow  the  advice  of  the  cabinet 
and  create  the  required  number  of  peers,  the  house  voted  not 
to  insist  on  the  amendments.  The  vote  was  131  to  114. 
Most  of  the  unionist  peers  refrained  from  voting;  a  few  voted 
with  the  liberals,  and  the  bill  passed  the  house  very  much 
as  the  first  reform  bill  had  in  1832. 

The  parliament  bill  as  passed  was  limited  to  "  restricting 
the  existing  powers  of  the  House  of  Lords,"  -and  made  no 
provision  for  a  reconstruction  of  the  house,  though  this  part 
of  the  plan  had  been  as  much  discussed  as  the  other,  and  was 
declared  by  the  preamble  of  the  bill  to  be  intended.  It  was 
provided  that  two  classes  of  bills  might  become  laws  without 
the  consent  of  the  house  of  lords ;  money  bills  and  other 
"  public  bills."  A  money  bill  becomes  an  act  of  parliament 
if  it  is  not  passed  by  the  lords  within  one  month  after  receiv- 
ing it  from  the  commons.  A  certificate  of  the  speaker  of 
the  house  of  commons  guarantees  that  the  bill  is  a  money 
bill,  that  is,  that  it  does  not  contain  other  legislation.  Other 
public  bills,  if  passed  by  the  house  of  commons  in  three 
successive  sessions,  whether  of  the  same  parliament  or  not, 
and  rejected  by  the  house  of  lords  each  time,  become  acts 
of  parliament  on  the  third  rejection,  provided  the  passage 
through  the  house  of  commons  has  occupied  two  years  from 
the  second  reading  in  the  first  session.  The  bill  must  be 
identical  in  all  sessions  except  for  such  changes  as  the  speaker 
may  certify  to  be  necessary  from  lapse  of  time,  or  as  may 


494  THE  RECENT  YEARS 

be  contained  in  amendments  proposed  by  the  lords  and  ac- 
cepted by  the  commons.  In  practice,  however,  it  may  be 
accompanied  with  a  separate  amending  bill.  By  the  parlia- 
ment bill  also  the  life  of  a  parliament  was  reduced  to  five 
3Tears,  and  this  limitation  cannot  be  changed  without  the 
expressed  assent  of  the  house  of  lords.  Under  this  act  the 
home  rule  for  Ireland  bill  and  the  Welsh  disestablishment 
bill  became  laws  in  1914,  though  the  operation  of  both  was 
suspended  during  the  war. 

To  an  outside  student  of  English  history,  the  constitu- 
tional importance  of  the  parliament  act  seems  to  have  been 
a  good  deal  exaggerated,  especially  by  its  opponents.  It 
has  made  only  one  real  change.  It  has  taken  away  the 
power  of  the  house  of  lords  to  delay  for  more  than  two  years 
a  measure  sanctioned  by  the  people,  as  the  bills  referred  to 
above  were  delayed,  or  the  plural  voting  bill,  later  twice 
passed  by  the  house  of  commons  under  the  parliament  act 
before  August,  1914.  It  does  not  seem  possible,  however, 
to  defend  such  a  right  of  indefinite  delay  on  any  ground  which 
does  not  deny  the  existence  of  democratic  government.  This 
change  being  admitted,  the  parliament  act  does  no  more 
than  to  put  into  fixed  statute  form  the  theory  regarding  the 
function  of  the  upper  house  in  legislation  which  had  been 
universally  held,  as  a  theory,  for  three-quarters  of  a  century. 
It  specifies  two  years  as  the  limit  of  delay,  but  the  right  to 
delay  a  measure  until  public  opinion  had  clearly  declared 
in  its  favor  is  all  that  had  been  claimed  for  the  lords,  though 
they  can  now  only  occasionally  cause  a  delay  until  after 
an  election.  The  accepted  theory  required  them  to  yield 
at  some  time,  as  completely  as  they  did  on  the  budget  of 
1909  when  presented  to  them  again  in  1910. 

Two  other  constitutional  results,  which  have  been  asserted, 
must  be  noticed.  It  has  been  said  that  the  constitution  of 
England  is  now  in  part  written.  This  is  no  more  a  result 
of  the  parliament  bill  than  of  many  other  statutes  in  the 
past,  and  none  of  them  makes  a  written  constitution,  or  part 


EFFECTS  OF  THE  WORLD  WAR  495 

of  one,  in  quite  the  American  sense.  They  do  not  mark  out 
a  new  way  for  the  future ;  they  rather  make  a  record  of  past 
progress.  The  parliament  bill  embodies  in  written  and  bind- 
ing form  the  results  of  the  constitutional  advance  since  1688, 
as  they  affect  the  house  of  lords,  as  the  Bill  of  Rights  did  the 
results  of  the  seventeenth  century,  as  they  affected  the  mon- 
archy. It  has  also  been  asserted  that  the  effect  of  the  par- 
liament act  will  be  to  increase  the  power  of  the  cabinet  over 
the  house  of  commons.  The  majority  party  will  be  bound, 
it  is  thought,  to  keep  the  ministry  in  office  till  the  end  of  the 
fixed  term  rather  than  to  run  the  risk  of  bringing  to  an  end 
the  progress  already  made  towards  some  desired  legislation. 
It  is  quite  possible  that  in  individual  cases  the  act  will  have 
this  effect.  They  are  likely  to  be  individual  cases,  however, 
not  numerous  enough  to  form  a  tendency,  and  they  are  not 
likely  to  reinforce  materially  the  influences  working  in  the 
same   direction. 

As  a  matter  of  history,  it  is  desirable  to  outline  the  changes 
in  the  practical  operation  of  the  government  brought  about 
by  the  war,  but  we  are  still  too  near  the  event  to  be  able  to 
say  whether  they  are  results  that  will  prove  to  be  really  con- 
stitutional or  merely  temporary.  Undoubtedly  in  some  re- 
spects the  tendency  of  war  conditions  has  been  to  accelerate 
changes  already  under  way.  At  once  the  effects  of  the  war 
began  to  be  apparent  in  parliament.  The  prime  minister 
announced,  even  before  the  formal  declaration  of  war,  that 
all  controversial  legislation  would  be  postponed.  The 
statutes  which  were  passed  over  the  house  of  lords'  veto,  and 
which  were  likely  to  occasion  more  or  less  ill-feeling  in  their 
operation,  the  home  rule  for  Ireland  and  the  Welsh  disestab- 
lishment acts,  were  suspended.  Party  differences  were  laid 
aside  and,  except  for  the  action  of  a  few  extreme  irreconcil- 
ables,  almost  disappeared  in  common  support  of  the  govern- 
ment. A  little  later  the  clause  in  the  parliament  act  limiting 
the  life  of  a  parliament  to  five  37ears  was  suspended,  and  by 
a  series  of  such  suspensions  the  war  parliament,  which  had 


496  THE  RECENT  YEARS 

been  elected  in  December,  1910,  was  continued  until  Novem- 
ber, 1918.  In  1915  the  reelection  of  members  appointed 
to  the  cabinet  was  suspended. 

The  most  important  changes,  likely  to  be  most  permanent, 
were  those  which  affected  the  cabinet  itself.  For  nearly  a 
year  after  the  beginning  of  the  war  the  liberal  cabinet  of  Mr. 
Asquith  conducted  the  government.  In  February,  1915,  the 
cabinet  asked  and  obtained  the  entire  time  of  the  house  for 
government  business.  In  May  of  the  same  year  the  cabinet 
was  reorganized.  Taking  occasion  of  some  resignations,  the 
unionist  leaders  are  supposed  to  have  informed  the  prime 
minister  that  they  could  no  longer  guarantee  the  support 
of  their  party  unless  it  were  made  responsible  for  some  share 
in  the  conduct  of  affairs.  In  the  reorganized  or  coalition 
cabinet  which  was  formed,  the  unionists  were  given  eight 
places,  in  a  cabinet  of  twenty-two.  The  fact  that  these  ap- 
pointments included  all  the  chief  leaders  of  the  parties  made 
a  more  complete  coalition,  or  coalescence,  of  parties  than 
any  previous  ministry  had  effected.  For  all  practical  pur- 
poses "  the  opposition "  no  longer  existed  in  the  house. 
Meantime  the  cabinet  as  a  body  proved  too  large  for  the 
quick  decisions  necessary  in  time  of  war,  especially  as  new 
and  pressing  exigencies  demanded  the  formation  of  new  de- 
partments, really  from  the  importance  of  their  business  of 
cabinet  rank.  Out  of  this  situation  gradually  grew  the  war 
committee,  which  in  November,  1915,  was  more  definitely 
established  with  five  or  six  members,  all  holding  important 
offices.  For  many  of  the  most  important  questions  to  be 
settled,  this  committee  was  in  reality,  though  not  in  form, 
an  inner  cabinet. 

The  government  thus  established  remained  in  control  of 
affairs  until  December,  1916.  In  the  meanwhile,  in  July, 
1915,  a  step  was  taken  which  may  lead  to  the  most  far-reach- 
ing of  the  constitutional  changes  brought  about  by  the  war. 
Sir  Robert  Borden,  prime  minister  of  the  Dominion  of 
Canada,  being  present  in  London,  was  invited  to  sit  with 


CABINET  CHANGES  497 

the  cabinet.  In  itself  the  innovation  was  not  a  great  one, 
as  there  had  been  some  occasions  in  the  past  when  cabinets 
had  asked  outsiders  to  give  counsel  at  their  meetings.  But 
it  was  something  new  to  ask  the  chief  minister  of  one  of  the 
great  colonies  to  sit  with  the  cabinet,  as  if  in  an  officially 
representative  capacity,  and  it  is  in  the  development  of  this 
phrase  of  the  innovation  that  its  significance  consists. 

The  war  committee  rapidly  repeated  the  history  of  the 
cabinet  itself  in  its  expansion.  In  July,  1916,  it  was 
formally  increased  to  seven,  but  its  greatest  expansion  came 
from  the  number  of  experts  and  advisers  constantly  invited 
to  sit  with  it.  At  the  beginning  of  winter  the  Times  de- 
clared that  there  were  two  cabinets  sitting  side  by  side. 
At  the  same  time  general  dissatisfaction  was  felt  with  the 
conduct  of  affairs,  which  were  thought  to  be  going  badly, 
especially  after  the  failure  of  the  Dardanelles  expedition. 
When  the  coalition  ministry  was  formed  in  1915,  it  was 
loudly  accused  by  some  of  being  a  dictatorship.  Now 
opinion  declared  that  it  was  not  enough  of  a  dictatorship. 
The  demand  was  general  for  further  concentration  of  power. 
There  never  has  been  a  clearer  illustration  of  the  fact, 
which  has  been  so  many  times  illustrated  in  history,  that  the 
effect  of  war  is  to  centralize  government,  than  the  history 
of  the  British  cabinet  in  this  war.  The  second  reorganiza- 
tion of  the  cabinet  came  in  December,  1916.  Mr.  Lloyd 
George  proposed  to  the  prime  minister  that  the  war  com- 
mittee should  be  limited  to  four,  not  including  Mr.  Asquith, 
and  intimated  that,  unless,  very  thoroughgoing  changes  were 
made,  he  must  retire  from  the  government.  After  some 
correspondence,  the  prime  minister  resigned,  and  on  the 
failure  of  Mr.  Bonar  Law,  leader  of  the  unionist  party,  to 
form  a  ministry,  Lloyd  George  succeeded. 

Thus  a  second  time  since  the  war  began  the  cabinet  had 
been  thoroughly  made  over,  once  involving  the  fall  of  the 
prime  minister,  with  no  adverse  vote  of  the  house  of  commons 
and  no  verdict  of  a  general  election.     But  it  would  be  ab- 


498  THE  RECENT  YEARS 

surd  to  maintain  that  the  change  was  not  demanded  and 
sanctioned  by  public  opinion.  The  revolution  of  December, 
1916,  never  could  have  been  carried  through,  and  the  ministry 
of  Lloyd  George  could  not  have  maintained  itself  a  month, 
if  it  had  not  had  the  general  support  of  the  nation.  Every- 
one who  is  familiar  with  the  situation  knows  this  to  be  the 
case,  but  the  significant  thing  is  that  the  voice  of  the  na- 
tion had  found  ways  of  effective  expression  outside  its  his- 
torical vehicle  in  parliament.  The  democratic  methods  of 
expression,  which  we  saw  coming  into  use  in  the  period  fol- 
lowing the  second  reform  bill,  reach  their  culmination  in 
this  event,  all  the  more  certainly  because  employing  no 
formal  declaration  or  resolution. 

In  the  administration  of  the  war  cabinet,  two  innovations, 
both  of  which  had  been  foreshadowed,  are  of  especial  promise 
for  the  future.      The  war  cabinet  of  five  or  six  members  was 
the  real  cabinet,  not  merely  for  military  affairs  but  for  the 
ordinary  government  of  the  country.     But  most  of  its  mem- 
bers   held   no    administrative   offices.     They   held    sinecures, 
or  they  were  ministers  "  without  portfolio."     But  the  heads 
of  the   administrative  departments   were  no  less   of  cabinet 
rank  for  their  most  important  business  than  before;  that  is, 
questions  were  constantly  arising  which  the  cabinet  must  de- 
cide, essential  to  the  good  government  of  the  country,  in  which 
the  interests  of  their  departments  were  intimately  concerned, 
and  which  could  not  be  safely  settled  by  the  cabinet  without 
their   advice.     The   practice   of   expert  advisers,  which   the 
war    committee   had   so   extensively   employed,   was    carried 
somewhat  farther  to  solve  this  difficulty.     The  head  of  the 
department  concerned  was  invited  to  the  discussion  of  the 
question,  not  as  an  expert  merely  but  as  a  full  member  of  the 
cabinet   for  the  occasion.     The  expedient  promises   a  way 
out  of  the  difficulty  of  the  cabinet,  overgrown  through  the 
apparently    necessary    multiplication    of   administrative   de- 
partments of  cabinet  importance.     The  head  of  the  depart- 
ment is  a  member  of  the  cabinet  for  the  policies  of  his  de- 


CHANGES  IN  METHODS  499 

partment,  with  all  the  privileges  and  responsibilities  which 
that  position  involves,  but  the  coordination  of  all  into  a 
government  policy  and  the  general  conduct  of  affairs  are 
the  responsibility  of  the  small  cabinet  proper,  which  he  does 
not  usually  attend. 

Evolution  since  the  war  has  not  followed  this  road,  and 
undoubtedly  the  exigencies  of  the  war  created  a  number  of 
departments  —  of  munitions,  of  blockade,  etc. —  not  to  be 
continued  in  time  of  peace.  The  chart  showing  the  adminis- 
trative  organization  during  1917,  published  in  the  report  of 
the  war  cabinet  for  that  year,  lists  twenty-nine  great  ad- 
ministrative departments  and  cabinet  officers.  Yet  in  the 
complexity  of  modern  business  the  problem  is  a  real  one,  and 
even  the  enlarged  cabinet  of  1920  may  find  it  well  to  follow 
the  example  of  the  war  cabinet,  and  the  future  may  make 
some  larger  use  of  it.  Two  or  three  incidental  results  of 
the  formation  of  the  war  cabinet  deserve  mention.  The 
members  found  their  duties  so  constant  and  so  pressing  that 
those  not  leading  the  two  houses  abandoned  attendance  in 
parliament  except  at  long  intervals.  Bitter  complaint  was 
made  of  the  prime  minister's  neglect  of  the  house,  especially 
after  the  making  of  the  armistice,  but  the  force  of  necessity 
was  stronger  than  the  force  of  tradition.  It  is  not  likely 
that  in  times  of  peace  the  neglect  will  be  so  great,  but  in  all 
probability  the  constant  attendance  of  Gladstone  is  a  thing 
of  the  past.  The  solidarity  of  ministerial  responsibilit}' 
temporarily  disappeared.  The  criticism  of  the  government 
of  India  in  view  of  the  failure  of  the  first  Mesopotamian  cam- 
paign, embodied  in  a  vote  of  the  commons,  led  to  the  resigna- 
tion of  Mr.  Austen  Chamberlain,  without  involving  any  other 
resignation.  With  general  government  in  the  hands  of  a 
small  cabinet,  this  result  would  naturally  and  easily  follow 
with  reference  to  special  departmental  questions.  The  tra- 
ditional secrecy  of  cabinet  sessions  came  to  an  end.  Advisers 
and  experts  were  freely  admitted.  A  secretariat  was  or- 
ganized and  regular  minutes  kept,  and  reports  were  published 


500  THE  RECENT  YEARS 

of  the  yearly  work.  What  the  future  may  contain  of  cab- 
inet history  no  one  can  say,  but  it  is  unlikely  that  the  ex- 
periences of  the  war  will  leave  its  development  unaffected. 

The  second  innovation  was  the  expansion  of  the  war  cab- 
inet into  an  imperial  war  cabinet  in  three  periods,  during 
the  spring  of  1917,  and  the  summer  and  autumn  of  1918. 
Almost  immediately  on  its  organization,  in  December,  1916, 
Lloyd  George's  government  sent  invitations  to  the  Dominion 
prime  ministers  "to  attend  a  series  of  special  and  continu- 
ous meetings  of  the  war  cabinet,"  and  to  the  viceroy  of  India 
to  send  Indian  representatives  to  assist  the  secretary  of  state 
for  India  in  these  meetings.  Those  invited  were  to  be  full 
members  of  the  cabinet  for  the  purposes  of  the  meetings, 
that  is,  for  questions  of  imperial  world  policy.  The  ex- 
periment worked  exceedingly  well.  The  prime  minister  was 
able  to  announce  in  the  house  of  commons  that  it  "  had  been 
a  complete  success  "  and  that  he  "  had  formally  proposed  on 
behalf  of  the  British  government  that  meetings  of  an  im- 
perial cabinet  (composed  as  above  described)  should  be  held 
annually,  or  at  any  intermediate  time  when  matters  of  urgent 
Imperial  concern  had  to  be  settled."  The  proposal  is  said 
to  have  been  "  received  with  the  cordial  approval  of  the  over- 
seas representatives  and  with  great  satisfaction  by  the  house 
of  commons."  During  the  first  two  periods  when  the  im- 
perial war  cabinet  was  in  session,  an  imperial  conference,  of 
the  kind  held  in  former  years,  was  also  in  session  on  other 
days,  of  which  the  Dominion  members  of  the  cabinet  were 
also  members.  The  colonial  secretary  presided,  and  there 
were  other  colonial  representatives  besides  the  members  of 
the  cabinet.  As  in  former  years,  its  functions  were  advisory 
merely  and  it  did  not  possess  the  authority  of  the  imperial 
war  cabinet.  Here  seems  provided  all  the  machinery  neces- 
sary for  the  constitutional  organization  of  the  British  em- 
pire, thoroughly  tested  in  a  violent  world  crisis,  simple  in 
operation,  avoiding  the  dangers  of  a  more  formal  executive 
and  legislative  government,  and  providing  amply  for  what  is 


THE  FOURTH  REFORM  BILL  501 

the  greatest  need  —  a  common  policy  adopted  by  common 
consultation. 

The  war  cabinet  remained  in  operation  until  nearly  a  year 
after  the  armistice  was  signed.  While  nearly  all  the  activ- 
ities of  parliament  had  to  do  with  the  war,  one  measure  of 
great  constitutional  importance  was  adopted  in  the  session 
of  1917  —  the  "representation  of  the  people"  act,  or  the 
fourth  reform  bill,  which  received  the  royal  assent  early  in 
1918.  The  provisions  of  the  bill  had  been  agreed  upon  at  a 
conference  of  party  leaders  arranged  by  the  speaker  of  the 
house  of  commons,  and  it  passed  without  serious  opposition. 
This  act  swept  away  almost  all  the  old  qualifications  for  suf- 
frage, and  set  up  a  common  qualification  based  on  local  occu- 
pation or  residence,  alike  for  counties  and  boroughs.  It  es- 
tablished universal  manhood  suffrage,  gave  the  vote  to  women 
of  thirty  years  of  age,  if  they  or  their  husbands  are  local 
government  electors,  limited  plural  voting  to  two  constitu- 
encies, and  election  expenses  to  five  pence  per  voter  in  bor- 
oughs and  seven  pence  in  counties,  and  introduced  a  new 
distribution  of  representation  according  to  population, 
upon  the  principle  of  one  member  for  every  70,000  in  Great 
Britain  and  for  every  43,000  in  Ireland.  It  added  thirty- 
seven  new  members  to  the  house  of  commons  and  8,000,000, 
to  the  number  of  voters,  including  6,000,000  women.  Un- 
der this  act  an  election  was  held  in  December,  1918,  the  first 
since  December,  1910,  which  resulted  in  an  overwhelming  vic- 
tory for  the  coalition  ministry.  By  another  act  of  1918 
women  were  made  eligible  to  seats  in  the  house  of  commons, 
the  age  required  in  this  case  being  twenty  one  years. 

Notwithstanding  the  heavy  majority  of  the  ministry,  the 
new  house  of  commons  was  divided  into  numerous  groups  and 
displayed  considerable  independence  in  the  session  of  1919, 
and  a  disposition  to  criticize.  In  July  the  cabinet  was  de- 
feated in  a  small  vote,  but  was  not  called  upon  to  resign. 
A  good  deal  of  criticism  centered  upon  the  continuance  of 
the  war  cabinet  so  long  after  the  end  of  the  war,  and  after 


502  THE  RECENT  YEARS 

a  more  severe  defeat  in  October  the  cabinet  was  recon- 
structed. The  new  cabinet  of  nineteen  members  was  formed 
on  the  pre-war  plan  of  including  the  heads  of  the  most  im- 
portant departments.  A  reaction  against  the  peculiar  war 
practices,  especially  against  war  centralization,  is  only  to 
be  expected,  but  it  does  not  necessarily  mean  the  end  of  all 
influence  from  these  practices.  Where  they  fall  in  line  with 
tendencies  which  were  in  existence  before  the  war  began,  they 
are  likely  to  add  distinctly  to  their  strength.  It  would  be, 
however,  a  new  experience  in  recent  Anglo-Saxon  history  if 
the  permanent  influences  from  a  period  of  war  were  un- 
democratic. 

It  may  be  repeated  in  conclusion  that  the  great  majorities 
in  recent  parliaments  which  render  the  defeat  of  the  ministry 
unlikely,  together  with  the  causes  which  have  been  noted 
above  which  make  the  members  reluctant  to  bring  on  a  dis- 
solution, have  a  tendency  to  give  a  house  of  commons  once 
elected  and  a  cabinet  once  in  office  security  for  the  full 
statutory  period  of  a  parliament's  life,  as  if  elected  and  ap- 
pointed for  a  fixed  period.  When  we  recall  in  addition  that 
various  causes  have  considerably  reduced  the  power  of  the 
house  to  hold  the  ministry  to  the  traditional  responsibility 
which  was  characteristic  of  the  British  system  in  the  middle 
of  the  last  century,  it  is  possible  to  say  that  recent  tenden- 
cies have  brought  the  British  government  in  its  practical 
operation,  not  in  form,  nearer  to  the  American  system. 
There  still  remain  great  differences.  The  presence  of  the 
ministry  in  parliament  is  one  which  cannot  be  overlooked, 
and  the  meeting  of  parliament  immediately  after  a  general 
election.  In  other  ways  also  public  opinion  brings  itself  to 
bear  upon  the  decisions  of  the  house  more  quickly  than  with 
us.  Ours  is  a  slower  acting  democracy,  but  there  is  un- 
doubtedly greater  similarity  in  the  actual  workings  of  gov- 
ernment between  the  two  countries  than  there  was  half  a 
century  ago.  The  inference  is  encouraging  with  regard  to 
the   next  stage  in  this  long  evolution  which   we  have  been 


THE  FUTURE  503 

following.  From  the  fact  that  our  two  countries,  in  trying 
to  find  out  for  the  first  time  in  history  the  best  ways  to 
operate  a  great  democracy,  seem  to  be  quite  independently 
taking  the  same  road,  we  may  have  good  reason  to  hope  that 
we  are  moving  in  the  right  direction. 

Bibliographical  Note. —  C.  D.  Allin,  The  Position  of  Parlia- 
ment,  Polit.  Sc.  Quart.,  xxix,  214.  1914.  J.  A.  Fairlie,  British 
War  Administration,  1919.  Sir  S.  Low,  The  Governance  of 
England,  1914.  W.  Notestein,  The  Career  of  Mr.  Asquith, 
Polit.  Sc.  Quart,  xxxi,  361,  1916.  R.  L.  Schuyler.  The  British 
War  Cabinet,  Polit,  Sc.  Quart.,  xxxiii,  378,  1918;  The  Decline  of 
the  House  of  Commons,  Columbia  Univ.  Quart.,  xxi,  310,  1919; 
The  British  Cabinet,  1916-1919,  Polit.  Sc.  Quart.,  xxxv,  77, 
1920.  The  War  cabinet,  Report  for  the  Year  1917,  1918; 
Report  for  the  Year  1918,  1919.  G.  M.  Wrong,  Canada  and 
the  Imperial  War  Cabinet,  Canadian  Hist.  Rev.  N.  S.,  I.  3,  1920. 


INDEX 


Administration,  Saxon,  24  f . ; 
Norman,  56  f.,  64,  90  f.;  in 
itinerant  justice  courts, 
103  f. ;  beginning  of  modern, 
156  f.,  232  f.,  452  ff. 

See  Council  small,  Sheriff. 

Admiralty,  the,  office,  476. 


Ashby  v.  White,  381. 

Asquith,  H.,  490,  496,  497. 

Assembly,  Saxon  national,  16; 
of  the  shire,  21,  23;  Norman 
national,  54,  64,  69  ff. 

Assize  of  Clarendon,  117. 

Assize  of  Northampton,  117. 


Agreement  of  the  People,  the,      Assizes,  the,   106,   116,   134  f., 

323  ff. 
Agriculture,     board     of,     453, 

478. 
Aids,  the   feudal,  65,   190;   in 

Magna    Carta,    132;    in    the 

Confirmation  of  the  Charters, 

189,   190. 
Alderman,  Saxon,  22,  57. 
American    constitutional   ideas, 

connection  with  English,  304, 

309,      319,      322  f.,      324  f., 

326  f.,  330,  333,  360  f. 
Anglo-Saxon,    original    institu- 
tions of,  10. 
Anne,  reign  of,  377  ff. 
Anselm,  archbishop,  94. 
"  Apology,   a    Form   of,"    273, 

284. 
Appeal,    from    court   to    court, 

Saxon,  23  f. ;  simplified,  329; 

in  criminal  cases,  454. 
Appropriations,    beginning    of, 

203  f .,      226  f . ;      developed, 

348  f. 
Arms,  assize  of,  117- 
Army,    standing.     331  f.,    352, 

371. 
Arrest,   freedom   from,   parlia- 
mentary, 224,  275,  284,  298, 

307. 


156. 
"  Association,"  the  liberal,  461, 

469. 
Attainder,      bills      of,      228  f., 

280  f.,  311. 
Aylesbury  men,  the,  381. 

Bacon,  Francis,  lord  chancel- 
lor, impeachment  of,  281  f. 

Bagehot,  on  the  English  con- 
stitution, 442. 

Bail,  excessive,  347. 

Ballot,  the,  329,  448  f.,  462, 
466. 

Barebone's  parliament,  326. 

Baron,  the  feudal,  relation  to 
government,  43,  64;  to  the 
King,  55  ff. ;  disappearing, 
210. 

Baronial  court,  the,  65,  73  f., 
107,  119,  135  f.,  156,  160. 

Bate's  case,  273. 

Battle,  proof  by,  71. 

Becket,  Thomas,  archbishop, 
96  ff. 

Benefit  of  Clergy,  97. 

"  Benevolences,"  237,  259,  275, 
290. 

Bills,  for  petitions  in  legisla- 
tion, 227. 


505 


506 


INDEX 


Bishop,  the,  in  the  shire  court, 
21;  as  a  baron,  91,  97,  194. 

Bishops,  petition  against,  1610, 
314. 

Bookland,  40  f. 

Borough,  the  county,  451  f. 

Borough,  the,  origin  of,  32 ; 
place  in  state  organization, 
32  f . ;  rights  granted  to  by 
charter,  171  f. ;  modern 
changes  in  government  of, 
450  f.,  452. 

Boroughs,  parliamentary,  crea- 
tions by  Tudors,  25G;  redis- 
tribution in  Instrument  of 
Government,  327  f . ;  pocket 
and  rotten,  397,  413,  435  f., 
447;  changes  in  second  re- 
form bill,  460;  in  third,  465; 
in  fourth,  501. 

Bot,  the,  31,  84,  85. 

Bourines,  Battle  of,  127. 

Bracton,  Henry  de,  111,  154, 
158. 

Bright,  John,  429. 

Brougham,  Lord,  429. 

Buckingham,  duke  of,  impeach- 
ment of,  288. 

Budget  question  of  1909,  489  f. 

Burgess  class,  the,  171  f., 
179  f.,  195. 

Burke,  Edmund.  415. 

Bute,  earl  of,  402  f. 

Cabinet,  formation  of,  349  ff., 
363  ff.;  growth  of,  383  ff.; 
the  inner,  396 ;  increase  of 
size,  396;  not  understood, 
399,  411  f.;  fully  established, 
428  f. ;  system  of  government 
illustrated,  440  ff.,  445  ff. ; 
dependence  on  the  constitu- 


encies, 463,  466  ff.,  486 ;  re- 
cent history,  475,  486  ft-., 
495,  502;  effect  of  war  of 
1914  on,  496  ff. 

Cabinet,  the  war,  1916,  498  f., 
501  f. ;  imperial  war  cabinet, 
500  f. 

Canon  law,  61. 

Carucage,  the,  123  f. 

Carucats,  the,  124. 

Catholic  emancipation,  423, 
424  f.,  432. 

Catholicism,  fear  of,  287, 
342  f. 

Caucus,  introduction  into  Eng- 
land, 461. 

Cavalier  parliament,  the,  338 
ff.,  313. 

Celtic  influence  on  the  consti- 
tution, 5. 

Centralization,  by  Henry  II, 
99  f.,  119;  as  a  result  of  war, 
416,  497. 

Chancellor,  the,  114,  157,  250, 
476. 

Chancery,  courts  of,  113,  155, 
157,  234;  as  offshoot  of 
council,   230  f.     See   Equity. 

Charles  I,  character  of,  287, 
322 ;  reign  of,  287  ff. ;  insists 
on  his  own  responsibility, 
290;  trial  and  execution, 
320  f. 

Charles  II,  reign  of,  334  ff.; 
character  of,  340  f. 

Chartism,  448  f. 

Church,  Anglo-Saxon,  attitude 
towards  the  monarchy,  13  f . ; 
effect  of  the  Norman  Con- 
quest on,  66  f . ;  feudalized, 
67 ;  ri9e  in  power,  93  ff. ;  in 
Magna  Carta,   130;   brought 


INDEX 


507 


under  control  of  parliament, 
244  f.,  258  f. 

Civil  rights,  at  end  of  fifteenth 
century,  237. 

Clarendon,  earl  of,  339,  364. 

Clarendon  code,  339  ff.,  376. 

Classes  in  the  population, 
Saxon,  33  ff.;  in  Norman 
age,  74  f . ;  in  thirteenth  cen- 
tury, 170  ff.;  as  affected  by 
the  industrial  revolution, 
421. 

Clergy,  in  parliament,  185, 
194  f. 

Coalition  ministries,  in  early 
cabinet  history,  368  ff . ;  in 
modern  times,  458;  in  war  of 
1914,  496  f. 

"  Coat  and  conduct  money," 
305. 

Cobden,  Richard,  429. 

Coke,  Sir  Edward,  chief  jus- 
tice, 276. 

Colonies,  office  for  the,  351, 
476;  government  of,  480. 

"  Commendams,"  case  of,  276, 
278. 

Committee,  the  war,  1915, 
496  f . 

Common  law,  origin  of,  109  ff. ; 
growth  of,  154  ff.,  158;  a 
protection  to  the  constitution, 
277  f. 

Common  law  courts,  in  Tudor 
age,  259  f.;  united,  455. 

See  Common  pleas,  Exche- 
quer, King's  bench. 

Common  pleas  court,  origin  of, 
109;  in  Magna  Carta,  134. 

Commons,  House  of,  origin, 
104  f. ;  right  to  a  share  in 
legislation,    199,    204  ff.;   no 


share  in  judicial  power  of 
curia  regis,  208,  282  f. ;  pack- 
ing of,  medieval,  213  f.,  238; 
Tudor,  256;  exclusive  control 
of  taxation,  224  f.,  351 ;  qual- 
ifications for  membership, 
225  f.,  328,  381;  in  Tudor 
age,  254  ff.;  power  estab- 
lished, 332;  supremacy  of, 
387  f.,  393,  394;  in  the  pres- 
ent constitution,  446  f.,  467 
ff.,  495,  502;  dependence  on 
the  constituencies,  461, 
466  f.,  472,  486. 

Commonwealth,  the,  created, 
325. 

"  Comprehension,"  271,  303, 
339,  340. 

Compromise,  the,  of  modern 
English  constitution,  335  ff., 
363  f.,  387  f.,  411. 

Compurgation,  procedure  of, 
28  ff . ;  in  the  new  procedure, 
116. 

Conference  and  council  method 
in  inter-state  affairs,  483. 

Conference,  imperial,  first,  482. 
483  f.;  second  to  fifth,  48  i; 
during  war  of  1914,  500  f. 

Conference  of  leaders  of  part- 
ies to  prevent  deadlock,  464, 
491,  501. 

Confirmation  of  the  Charters  of 
1297,   189  ff.,   196,   202. 

Conservative  party,  458. 

Constitution,  written,  the  first, 
323  ff.;  the  Instrument  of 
Government,  326  ff. ;  Bill  of 
Rights  as,  358. 

Constitutions  of  Clarendon, 
96  f.,  117. 

Contract,   the    feudal,    68,    81, 


508 


INDEX 


126  f.,   129;  the  "original," 
356. 

Convention  parliament,  of  1 660, 
337;  of  1689,  355  ff.,  360. 

Conventicle  act,  1664,  339. 

Convocation,  the  church  as- 
sembly, 194,  351. 

Copyhold,  260. 

Coram  rege  business,  109,  134. 

Coronation  oath,  14,  126,  198. 

Corporation  act,  1661,  339. 

Corrupt  practices,  political, 
346,  447,  466;  parliament- 
ary, 397,  404  f.,  413. 

Council,  the  great,  64 ;  Norman, 
68  ff . ;  in  Magna  Carta, 
132  f. ;  continued  after  rise 
of  parliament,  172  f. ;  change 
of  into  parliament,  169,  172, 
187;  at  York,  1640,  307  f. 

Council,  Saxon  small,  16;  Nor- 
man, 70  f .,  230 ;  differentia- 
tion of,  92,  113,  157,  229  ff. ; 
as  court  of  law,  155;  in  fif- 
teenth century,  229  ff . ;  in 
Tudor  age,  249;  criminal 
jurisdiction  of,  248  f. ;  ordi- 
nary jurisdiction  abolished, 
313  f. ;  modern  judicial  func- 
tion, 314. 

See  Privy  council. 

County,  in  modern  local  gov- 
ernment, 452;  the  "admin- 
istration," 452. 

County  courts,  modern,  455. 
See  Shire  courts. 

Court  baron,  the,  156,  160. 

Courts,  Saxon  national,  15; 
Saxon  king's  local,  17;  of  the 
shire,  21  ff.,  23;  of  the  hun- 
dred, 24;  of  the  town,  26; 
Norman  King's  local,  59,  88, 


101 ;  modern  organization  of, 
454  f. 

See  Judicial  system,  Shire 
court. 

Cowell's  Interpreter,  278. 

Criminal  law,  Saxon,  25 ;  Nor- 
man, 72,  84  f. ;  changes  in  by 
Henry  II,  114  ff.;  reform  of, 
431. 

Criminal  trials,  Saxon,  30  f . ; 
of  clerks,  96 ;  changes  in  by 
Henry  II,  114  ff.;  in  star 
chamber,  248  f.;  reform  of, 
454. 

See  Procedure. 

Cromwell,  Oliver,  319,  326  ff. 

Curia  regis,  64,  68  ff. 

Customs  duties,  in  time  of  Ed- 
ward I,  189,  200  f. 

See    Impositions,    tunnage 
and  poundage. 

Danegeld,    in    Saxon    age,    19, 

47;  after  the  Conquest,  122. 
Darnel's  case,  291. 
Debate,    in    present    house    of 

commons,  470  f. ;  in  house  of 

lords,  474  f. 
Declaration    of    Independence, 

the    American,    139,    296  f., 

357  f. 
Declaration       of       indulgence, 

Charles    I's,    241  f. ;    James 

II's,  363  f. 
Declarations    of   the    rights    of 

man,  357. 
De    donis    conditionalibus,    the 

statute,  164  ff. 
De  mercatorihus,  statute,    159, 

181,  205. 
Democracy,     the     independent 

party    and,    319,    323,    353; 


INDEX 


509 


rise  of  modern,  410  ff.,  420 

ff.,  463  ff. 
Deposition  of  the  king,  13,  139, 

140,  220  f.,  355  f.,  360. 
De     tallagio    non    concedendo, 

189  f. 
Dialogue     of     the     Exchequer, 

117  f. 
Difpdatio,  the,  128,  137. 
Dispensing  power,  234  f.,  341  f. 
Disraeli,  Benjamin,  429,  459  f., 

462. 
Dissenter,  the,  340. 
Divine  right  of  kings,  265,  357, 

366. 
Domain,  the,  63;  domain  man- 
ors, 63  f. 
Domanial  court,  26  f.,  160. 
Domesday   survey,   method   of, 

88  f. 
Dunning's  resolution,  406. 


Earl,  The,  Saxon,  22  f .,  48 ;  the 

Norman,  57  f. 

See  Palatine  earldoms. 
Edgar's  Law,  25. 
Education,  board  of,  453,  477  f. 
Education,  free  public,  329. 
Education,  national,  449,  453, 

462. 
Edward  I,  reign  of,  157  ff. ;  the 

English  Justinian,  158;   and 

parliament,  182  f. 

See    Confirmation    of    the 

Charters. 
Edward  II,  the  reign  of,   197 

ff.;  deposition  of,  199,  213, 

356. 
Edward  III,  reign  of,  202  ff. 
Edward  VII,  442,  491. 
Election  of  the  king,  18. 


Eliot,  Sir  John,  288  f.,  297, 
298. 

Elizabeth,  question  of  succes- 
sion of,  257;  age  of,  262  f. 

Empire,  changed  idea  of,  482  f. 

England,  character  on  eve  of 
Conquest.  9. 

Englishry,  presentment  of,  85. 

Entails  of  land,  165. 
See  Recovery. 

Equity  system,  the,  origin  of, 
111  ff.;  growth  of,  155,  168; 
union  with  common  law,  329, 
455;  criminal,  see  Star 
Chamber. 

See  Chancery  Courts. 

Escheat,  66,  162. 

Exchequer,  accounting,  in 
Saxon  times,  48;  in  Norman, 
91  f. ;  as  offshoot  of  council, 
230  f. 

Exchequer,  chancellor  of,  398, 
477. 

Excise  tax,  329,  338,  391  f. 

Exclusion  bill,  the,  344. 

Federation,  imperial,  478  ff. ; 
league,  482  f. 

Feudalism,  Saxon,  41  ff. ;  Nor- 
man, 61  ff.,  67  f. ;  how  intro- 
duced into  England,  66  f . ; 
'attack  of  Henry  II  on,  108; 
decline  of,   147,   153  f.,   161. 

Fifteenth  and  tenth,  the,  285, 
351. 

Finance  bill  of  1909-10,  489  f. 

Five  Knights'  case,  291. 

Five  members,  attempted  ar- 
rest of  the,  316. 

Five  mile  act,  1665,  339. 

Flambard,  Ranulf,  80. 

Floyd,  case  of,  282  f. 


510 


INDEX 


Folkland,  40  f . 

Foreign  affairs,  parliament  and, 
283;  the  king  and,  442;  sec- 
retary of  state  for,  476;  an 
imperial  policy  in,  484  f. 

Forests,  royal,  reestablished, 
299,  313. 

Fortescue,  Sir  John,  on  the 
king's  power,  219  f. 

Fox,  Charles  James,  406  ff., 
415  ff.,  425. 

Franchisal  court,  74,  155  f., 
159  f. 

Frank  almoign  tenure,  67,  97, 
106. 

Frankish  influence  on  the  con- 
stitution, 6  f. 

Frankpledge  system,  the,  71  f. 

Freedom  of  debate,  214,  223  f. 

Freeman,  the,  Saxon,  35  f. ;  in 
Magna  Carta,  136  f. 

Fyrdwite,  the,  46. 


Gentry,  the,  rise  of  the  class, 
170  f. ;  in  local  government, 
338,  453. 

George  I,  reign  of,  383  f . ;  with- 
draws from  cabinet  meetings, 
384,  390. 

George  II,  reign  of,  384  ff. 

George  III,  reign  of,  362,  399 
ff. ;  and  American  Revolution, 
405  f . ;  note  to  Earl  Temple, 
407,  441 ;  and  Catholic  eman- 
cipation, 424  f. 

George  IV,  432. 

George  V,  491  f. 

George,  Lloyd,  497. 

Gesith,  the,  34. 

Gladstone,  W.  E.,  429,  442, 
457,    458,    481;    reforms    in 


first    ministry,    462;    second 

ministry,  463  ff. 
Glanvill,  Ranulf,  99,  111,  118. 
Grand  assize,  the,  106,  116. 
Grand  jury,  origin  of,  115  f. 
Grand  Remonstrance,   315  f. 
Grey,  Earl,  efforts  for  electoral 

reform,   414,  434,  436;   and 

the  first  reform  bill,  436  ff. 

Habeas  corpus,  129,  136,  269, 
291;  act  of  1679,  347;  sus- 
pended, 415,  431. 

Hampden,  John,  302,  306. 

Hampton  court  conference,  272. 

Harley,  Robert,  377,  378. 

Haxey,  case  of,  214,  223. 

Henry  I,  his  reign,  80  ff. ;  coro- 
nation charter,  81  f.,  126  f. 

Henry  II,  his  reign  and  re- 
forms, 95  ff.,  118  f. 

Henry  III,  140;  reign  of, 
144  ff. 

Henry  IV,  Bolingbroke,  216; 
character   of  his   reign,   217. 

Henry  VII,  reign  of,  240  ff.; 
special  work  of,  246  f. 

Henry  VIII,  his  chief  measures, 
256  ff. 

Hidage,  123. 

Hide,  the,  36. 

High  commission,  court  of,  259, 
314,  353. 

Home  department,  the,  453. 
476. 

Home  rule,  Irish,  485,  491, 
494,  495 ;  party,  468. 

Honor,  the,  74. 

Hooker.  Thomas,  and  sover- 
eignty of  the  people,  321. 

Hundred,  the,  20,  260;  court 
of,  24,  71,  260. 


INDEX 


511 


Hundred  rolls,  the,  159. 

Impeachment,  beginning  of, 
208  ff. ;  revival  in  Stuart  age, 
280  ff.,  310  ff.;  perfected, 
348,  374;  obsolete,  366. 
371  ff. 

Imperial  war  cabinet,  500  f. 

Impositions,  273  f. 

Independent  wing  of  Puritans, 
271;  in  power  after  second 
civil  war,  318  ff . ;  their  polit- 
ical ideas,  319  ff.;  in  Amer- 
ica, 326  ff.,  330 ;  ideas  of  re- 
ligious liberty,  319,  328;  af- 
ter the  Restoration,  339  f. 

India,  secretary  of  state  for, 
476. 

Industrial  revolution,  the,  420 
ff..  429. 

Inquest  of  Sheriffs,  the.  117. 

Inquisition,  the  (Inquest), 
105. 

Innocent  III  and  King  John, 
125;  feudal  lord  of  England, 
125;  and  Magna  Carta,  140. 

Instrument  of  Government, 
the,  326  ff. 

Insurrection,  feudal  right  of, 
53,  137  ff. 

Investiture  strife,  the,  94. 

James  I,  character  of,  265 ;  age 
of,  265  ff. ;  financial  difficul- 
ties of,  271  ff.,  283. 

James  II,  the  reign  of,  351  ff . ; 
deposition  of,   355  f. 

John,  his  absolute  power  as 
king,  125  ff . ;  becomes  vassal 
of  the  pope,  125;  agrees  to 
the  Great  Charter,  128;  de- 
position of,  140. 


Judgment  making,  Saxon,  23. 
See  Procedure,  judicial. 

Judges,  as  law  advisers  of  gov- 
ernment, 276  f. ;  tenure  of  of- 
fice, 313,  330,  346,  374;  in- 
dependence of  the  executive, 
346. 

Judicature  acts,  454  f. 

Judicial  system,  Saxon,  19; 
feudal,  64,  70,  73  f . ;  of  Nor- 
man period,  85  ff. ;  of  Henry 
II,    100  ff.;    of    Henry    III, 

154  f. ;  modern,  454  f. 
See  Courts. 

"Junto,"  the,  370,  375,  381. 

Jurisdiction,  Ecclesiastical,  94 
ff. 

Jurisdiction,  private,  rise  of, 
26  f . ;  on  eve  of  the  Conquest, 
45 ;  under  Normans,  72  ff., 
119;      under      Henry      III, 

155  f. ;  in  Tudor  age,  260. 
Jury,  the,  82;  origin  and  de- 
velopment, 86  f . ;  in  itinerant 
justice  court,  102  f.,  105; 
grand,  115  f.;  petty,  116;  in 
taxation,  123;  general  ver- 
dicts, 354. 

Justice  of  the  peace,  early  his- 
tory, 260  f . ;  in  present  local 
government,  452  f. 

Justices,  itinerant,  86  ff.,  102, 
115. 

Justiciar,  the,  114. 

Keeper,  lord,   250. 

King,  the,  in  the  modern  con- 
stitution, 440  ff. 
See  Kingship. 

King's  bench  court,  109,  157, 
230  f. 

Kingship,  origin  of  the  Saxon, 


512 


INDEX 


10  f.;  character  of,  11  ff.,  52; 
character  of  the  Norman, 
52  ff.,  78  f. ;  as  representing 
divine  government,  108,  112; 
changed  idea  of,  147  f. ;  abol- 
ished, 1649,  325;  restored, 
334  ff. 

See  Monarchy. 

King's  peace,  the,  Saxon,  25  f. ; 
Norman,  84  f. 

King's  pleas,  the,  Saxon,  48 ; 
Norman,  84  f.,  115;  in  pri- 
vate hands,  160;  in  Tudor 
age,  260. 

Knighthood,  compulsory.  298  f, 
313. 

Knights,  as  a  class,  170  f. ;  in 
council  of  1254,  174  f.;  em- 
ployment of,  in  public  busi- 
ness, 175  f. ;  join  the  house 
of  commons,  195  f. 

Knight's  fee,  the,  62. 


Laga  Edwardi,  the,  83,  126. 
Lancaster,  house  of,  relation  to 

constitution,  217  ff. 
Lancastrian   age,  character  of, 

218  ff.,  237  f. 
Land  holding,  forms  of  Saxon, 

38  ff. ;  of  feudal,  44 ;  feudal 

abolished,  338. 
Land  laws  of  Edward  I,  161  ff. 
Langton,  Stephen,   archbishop, 

126. 
Laud,      William,      archbishop, 

303,  305,  312. 
Law  above  the  King,  79,  210, 

295,  311,  314,  359. 
Law,  the  rule  of,  314. 
Law     books,     early     Norman, 

82  f.;     Glanvill,     111,     118; 


Bracton,  111;  Fortescue, 
219  f.;  Blackstone,  399. 

Law,  English,  early,  purely 
Germanic,  5 ;  character  of, 
8,  19  f. ;  changes  in,  85  ff., 
100  ff.,  154  f.,  158  ff.,  454  f. 

Leges  Henrici,  83  ff. 

Legislation,  Saxon,  15;  Nor- 
man, 70  f. ;  share  of  commons 
in,  199,  204  ff.;  by  bills,  227; 
in  Tudor  age,  251  f. 

Liber  homo,  35. 

Liberal  party,  396,  458  f.; 
tendency  to  split,  487. 

Liberty,  the,  28,  56,  159. 

Lincoln,  bishop  of,  refuses  to 
send  knights  to  France,  125. 

Livery  and  maintenance,  247  f. 

Loans,  forced,  Tudor,  259; 
Stuart,  290  f. 

Local  government,  Saxon,  20 
ff.,  27;  effect  Norman  Con- 
quest on,  51,  71 ;  the  jury  in, 
87;  Tudor,  259  ff.,  450; 
modern,  450  ff. 

Local  government  board,  453, 
478. 

Locke,  John,  357,  360  f. 

London,  local  government  of, 
451  f. 

Long  parliament,  the,  309  ff. ; 
legislation  of,  312  ff.,  337. 

Lords,  House  of,  195  f.,  362; 
in  Tudor  age,  253  f . ;  and  the 
execution  of  Charles  I, 
320  f. ;  disappearance  of, 
323;  abolished,  325;  as  court 
of  law,  351,  455;  and  first 
reform  bill,  437  ff.;  in  pres- 
ent constitution,  443  ff.,  494 ; 
and  liberal  ministries,  444; 
reconstruction        of,        464, 


INDEX 


513 


492  f. ;  in  recent  times.  473 
ff.,  488  ff. ;  debate  in,  474  f . ; 
powers  in  taxation,  489  f. 
Lordships  private,  rise  of,  27  f., 
39  f. 

Magna  Carta,  82,  128  ff.,  144, 
156,  189  ff.,  199,  210,  311  f.; 
as  foundation  of  the  constitu- 
tion, 129  f.,  138  f. ;  confirma- 
tion of,  139  f.,  142  f.,  149; 
reissues  of,  140  f. ;  cited  in 
struggle  with  Stuarts,  291. 

"  Maletote,"  the,  189. 

Manor,  the,  26,  39  f.,  45,  62 
ff. ;  the  domain  manor,  63  f. 

Manorial  court,  See  Domainal 
court. 

Marlborough,  duke  of,  378. 

Marlborough,  statute  of,  151. 

Mary  I,  question  of  succession 
of,  257. 

Marriage,  feudal  right  of,  66, 
131,  162. 

Martial  law,  Stuart  use  of,  291, 
293. 

Melbourne,  Lord,  456. 

Militia  ordinance,  317. 

Military  service,  Saxon,  46  f. ; 
Norman,  55,  64,  153  f. 

Millenary,  petition,  272. 

Ministerial  responsibility,  me- 
dieval, 209  f . ;  modern,  289  f ., 
336  f.,  349,  363,  366,  372  f., 
381  f.,  395,  400,  407,  472, 
502 ;  to  prime  minister, 
391  f.,  400. 

Misericordia  regis,  85. 

Monarchy,  Saxon  elective, 
12  f. ;  Norman  absolute,  53  f., 
77  ff.,  100;  limited,  147  f., 
188,  198,  219  f.,  362  f.,  366, 


393  f . ;   Tudor  absolute,  242 
ff. ;  end  of  absolute,  331,  362 ; 
future  of,  483. 
See  Kingship. 

Monopolies,  of  Stuart  age,  280; 
forbidden  by  law,  285;  re- 
established by  Charles  I, 
299  f. 

Montfort,  Simon  de,  152;  and 
origin  of  parliament,  177  ff. 

Mortmain,  statute  of,  163. 

Murdrum,  85. 

Mutiny  act,  377. 

Nation,  the,  beginning  of  idea 
of,  148;  development  in  six- 
teenth century,  246. 

New  England,  puritan  consti- 
tutional ideas  in,  304;  influ- 
ence upon  England,  323. 

Newcastle,  duke  of,  394,  402. 

Nineteen  Propositions,  the, 
317  f. 

Nisi  prius  cases,  103. 

Nobility,  the  Saxon,  33  ff.; 
Norman,  74  f. ;  modern,  210; 
Tudor  new  families,  254. 

Non-conformist,  the,  340. 

Non-resistance,  doctrine  of, 
346,  351  f.,  379. 

Norman  Conquest,  the,  50  f. ; 
constitutional  results  of,  7j 
51  f. ;  effect  on  the  church, 
60  f. 

North,  Lord,  403,  405  f.,  412. 

Oath,  coronation,  14,  126,  198; 

of   compungators,    28  ff.;   of 

fealty  to  King,  57. 
Office    holders,    in    parliament, 

375  f.,  397,  405,  413. 


514 


INDEX 


Officers   personally  responsible 

for  acts,  237- 
Opposition,  medieval  baronial, 

153,    180,    188,    197.    190  f., 

207,  211,  213;  parliamentary, 

395. 
Orange.  William  Prince  of,  355. 
Ordeal,  the,  30  f.,  116. 
Orders  in  Council,  207. 
Ordinances,  205  ff.,  232,  317. 
Ordinances  of  1311,  198  f. 
Outlawry,  31. 

Palatine  earldoms,  the,  58. 

Palmerston,  Lord,  429,  441, 
457  f. 

Papacy,  financial  demands  of 
England  under  Henry  III, 
146;  international  govern- 
ment of,  244 ;  breach  of  Eng- 
land with,  257  ff. 

Pardoning  power,  234  f. 

Parish,  as  successor  of  the 
town,  261  f. ;  in  modern  local 
government,  453. 

Parliament,  150,  153,  418  f.; 
origin  of,  169  ff.;  transi- 
tional period,  180  ff. ;  of 
1265,  178  f.;  of  1295,  184  f.; 
as  protector  of  the  constitu- 
tion, 180,  187,  192,  197, 
211  f. ;  growth  of  its  power. 
192  ff.;  in  Lancastrian  age, 
218,  233  f.;  in  Tudor  age, 
243,  251  f.,  252  ff.,  258  f., 
263;  attitude  in  Stuart  age, 
266  ff..  288  f. ;  supremacy  of, 
331,  334  ff.,  380,  400;  life  of, 
see  Triennial  acts,  septen- 
nial acts. 

Parliament  bill,  1911,  444  f., 
492  ff. 


Parties,  political,  rise  of,  344  f., 
369  ff. ;  suspension  of,  in 
time  of  war,  416  f.,  %95. 

Party  government,  388  f. ;  sus- 
pended in  time  of  war,  416  f., 
495. 

Peel,  Sir  Robert,  396,  429,  439, 
456  f. 

Peerage,  the,  origin  of,  196;  in 
Tudor  age,  253  f.;  creations 
since  Tudor  age,  473  f. 

Peers,  the  judgment  of  his, 
136  f. ;  creation  of  to  create 
a  ma j  ority ;  by  Anne,  380  ; 
for  first  reform  bill,  438;  for 
parliament  bill,  491  f. 

People,  the,  source  of  govern- 
ment's authority,  321,  323 
ff.,  327. 

See  Sovereignty  of. 

People's  Charter,  the,  448. 

Peterloo  massacre,  430. 

Petition,  as  initiating  legisla- 
tion, 204  ff.,  227  f. 

Petition  of  right,  the,  293  ff., 
298,  346. 

Pipe  Rolls,  the,  92. 

Pitt,  William,  elder,  392,  394, 
396,  401  ff. 

Pitt,  William,  the  younger,  407 
ff.,  434. 

Policy,  governmental,  parlia- 
mentary control  of,  207 
ff.,  336,  367  f.,  400,  402, 
405. 

Poor,  care  of  the,  262.  449,  453. 

Popish  plot,  343. 

roynings'  law,  251  f.,  423. 

Precedent,  use  of  in  Stuart  age, 
268  ff.,  271.  277  f. 

Premunientcs  clause,  185,  194. 

Prerogative,    the    royal.    78  f., 


INDEX 


515 


112;  procedure,   106  f.,   Ill, 
248  f.;  organ  of,  230,  818. 

Presbyterian  party,  271;  in 
long  parliament,  315;  de- 
feated in  second  civil  war, 
318;  in  the  Restoration, 
337  f.,  339  f. 

Press,  freedom  of,  329,  377. 

Pride's  purge,  S20. 

Prime  minister,  the,  381  !'.,  428  ; 
the  first,  366  f.,  390  f. 

Primer  seisin,  65. 

Privileges  of  parliament,  222, 
229;  right  to,  questioned  by 
the  king,  283  f. 

Privy  council,  2 19  f .,  396  ;  ap- 
pellate       jurisdiction         of, 
313  f. ;  relation  to  cabinet  be- 
ginning, 349  f.,  369,  375. 
See  Council,  small. 

Privy  seal,  250. 

Privy  seal,  lord,  477. 

"  Privy   seals,"   259,  275,  290. 

Procedure,  judicial,  Saxon, 
23  f.,  28  ff.;  Norman,  71, 
104;  new  prerogative,  106  f. ; 
as  source  of  the  common  law, 
110  f.;  criminal,  115  ff.,  155, 
248  f . ;  reform  of,  329,  454. 

Proclamations,  207;  in  Tudor 
age,  252;  in  Stuart  period, 
274  f. 

Protectorate,  the,  created,  327- 

Protestantism,  in  Tudor  age, 
258  f. 

"  Protestation,"  the,  283  f. 

Provisions  of  Oxford,  151  ff., 
180,  318. 

Provisors,  146. 

Public  opinion,  influence  on 
government,  392,  408,  417  f., 
437,  466  f.,  470,  498,  502. 


Publication  of  parliamentary 
debates,  419  f. 

Puritans,  270  f.,  303  f.;  their 
constitutional  ideas  in  Amer- 
ica, 304,  322  f.,  360  f.;  in 
long  parliament,  315. 

Pym,  John,  806,  311. 

Quarter  sessions,  261. 

Quartering  of  troops,  291,  293. 

Quia  emptores,  statute  of,  159, 
163  f.,  181. 

Quo  warranto  inquiry,  of 
Henry  III  and  Edward  I, 
156,  159,  188;  proceedings 
against  the  boroughs,  346, 
450. 


Radical  movement,  after  1815, 
430  f.,  448,  458. 

Recognition,  the,  105. 

Recovery,  the,  to  break  an  en- 
tail, 166  f. 

Reform  age,  of  nineteenth  cen- 
tury, 431  ff. 

Reform  bill,  first,  436  ff. ;  re- 
sults of,  447  f . ;  second, 
459  f.;  third,  463  ff.;  fourth, 
501. 

Regencies,  426  f. 

Relief,  the,  65,  181,  162. 

Religious  liberty,  119,  328. 

Remainder,  in  a  grant,  165. 

Representation,  distribution  of, 
327  f.,  413  f.,  435,  447;  re- 
forms of,  433  ff.,  460,  463  f., 
465  f..  501. 

Representation  of  the  people 
act,  501. 

Representative  system,  not  in 
Magna    Carta,    129,    138  f.; 


516 


INDEX 


beginning  of,  175,  177,  183, 
185  f.,  192. 

Repression  of  opinion,  at  time 
of  French  revolution,  415  f. ; 
after  Napoleonic  wars,  430  f. 

Restoration,  the,  334  ff.,  363. 

Revenue,  sources  of  Saxon, 
47  f. ;  Norman,  90  f. ;  at  end 
of  twelfth  century,  121  f. ; 
Stuart  illegal,  275,  298  ff.; 
parliamentary  control  of,  es- 
tablished, 332. 
See  Taxation. 

Reversion,  of  lands,  165  ff. 

Revolution,  American,  405  f. 

Revolution,  French,  effect  on 
electoral  reform,  414. 

Revolution  of  1399,  215,  216  f.; 
first  step  towards  in  Stuart 
age,  297  f.;  of  1688,  355  ff., 
379. 

Richard  I,  as  king,  121,  124; 
ransom  of,  123. 

Richard  II,  reign  of,  212  ff.; 
deposition  of,  215,  356. 

Rights,  bill  of,  357  ff. 

Roman  influence  on  the  consti- 
tution, 5  f.,  7. 

Root  and  branch  bill,  315. 

Roses,  wars  of  the,  218,  236. 

Rump  parliament,  the,  320, 
323,  326. 

Russell,  Lord  John,  429,  434 
ff.,  459. 

Sacheverell,  Dr.,  378  f. 
Saladin  tithe,  the,  122  f. 
Saxon  institutions,  survival  of, 

82  ff.,  89. 
Scotland,    act    of    union    with, 

380;  secretary  of  state   for, 

476. 


Scots  resist  Laud's  high  church 
plans,  305;  enter  England 
against  Charles  I,  307;  sup- 
port parliament,  309;  in  sec- 
ond civil  war,  318. 

Scutage,  122;  in  Magna  Carta, 
132,  141. 

Septennial  act,  398;  repealed, 
494. 

Serf,  the  Saxon,  37  f. 

Serjeanty  tenure,  the,  64, 
156  f. 

Settlement,  act  of,  373  ff. 

Sheriff,  the  Saxon,  17  ff.; 
Norman,  58  ff.,  87,  90. 

Sheriff's  farm,  Saxon,  18,  47  f. ; 
Norman,  59,  91. 

Sheriff's  turn,  72. 

Ship  money,  300  ff.,  313. 

Shire,  the,  9,  20  ff. ;  court  of, 
21  ff.,  23,  71,  102,  186,  260. 

Short  parliament,  the,  305  f. 

Slave,  the  Saxon,  36  f. 

Smith,  Goldwin,  The  Empire, 
481. 

Smith,  Sir  Thomas,  on  the  Tu- 
dor parliament,  263. 

Socage  tenure,  74. 

Sovereignty,  issue  of,  in  Stuart 
age,  267  f.,  274,  278  f., 
295  f.,  297,  301  f.,  317,  320, 
335  f.,  363. 

Sovereignty  of  the  people,  309, 
317,  320  ff.,  329,  422. 

Star  chamber,  court  of,  235, 
248  f. 

State,  secretary  of,  251,  476. 

Statute,  the,  158,  205. 

Stephen,  character  and  effect 
of  his  rule,  93,  95. 

Strafford,  earl  of,  306  f . ;  im- 
peachment of,  310  f. 


INDEX 


517 


See         Wentworth,        Sir 
Thomas. 

Strode,  case  of,  224. 

Stuart  age,  fundamental  issue 
in,  267  f . ;  creative,  268  f . 

Sub-infeudation,  64. 

Subsidy,  the,  285. 

Succession  to  the  crown,  220  f . ; 
regulated  by  Henry  VIII, 
256  f.;  in  1689,  356;  in  act 
of  settlement,  374. 

Suffrage,  parliamentary,  first 
regulation,  226;  female,  329, 
501;  regulation  by  house  of 
commons.  381 ;  reform  of, 
413  f.,  433  ff.,  447,  460,  465, 
501. 

Suit  of  court,  155. 

Sunderland,  earl  of,  370. 

Supremacy,  Act  of,  258. 

Suspending  power,  341  f. 
See  Dispensing  power. 

Tallage,  190,  201. 

Tariff  reforms,  431  f.,  449. 

Taxation,  Saxon,  19,  47;  rise 
of  national,  121  ff.,  190;  in 
Magna  Carta,  131  f.;  by  Ed- 
ward I,  187  f.;  illegal  with- 
out consent,  190  f.,  197,  200, 
202;  used  by  Parliament, 
against  the  King,  200  ff., 
283,  288  f. ;  Tudor  arbitrary, 
259;  Stuart,  275,  298  ff.,  307. 
See  Revenue,  Commons, 
House  of. 

Temple,  Earl,  note  of  George 
III  to,  407. 

Temple,  Sir  William,  plan  for 
a  council,  350,  364,  366. 

Test  act.  the,  343,  353;  re- 
pealed, 432. 


Teutonic  influence  on  the  con- 
stitution, 6  f. 

Thegn,  the,  34. 

Tithing,  the,  25,  71  f. 

Toleration,  religious,  376, 
432  f. 

Tory  party,  369,  389,  403,  410, 
417,  431,  458. 

Town,  the,  20,  26,  261  f. 

Trade,  board  of,  453,  477. 

Treason,  charge  of  against 
Straft'ord,  310  f. ;  against 
Charles  I,  320  f . ;  trials  for, 
377,  415. 

Treasurer,  Lord,  250,  398,  476. 

Triennial  act,  of  1641,  312, 
338;  of  1694,  377;  repealed, 
397. 

Trinoda  necessitas,  40,  48. 

Trusts,  early  form  of,  167  f. 

Tudor  age,  238,  240  ff. 

Tunnage  and  poundage,  288, 
290,  297,  300,  313,  338. 

Unconstitutional,  power  to  de- 
cide acts,  328. 

Uniformity,  act  of,  258,  339. 

Union,  act  of,  with  Scotland, 
380;  with  Ireland,  422  ff. 

Unionist  party,  488. 

United  States,  puritan  consti- 
tutional ideas  in,  304,  322. 

Uses,  early  form  of,  167  f. 

Utrum,  the  assize,  106,  116. 

Vassalage,  Saxon,  46. 

Veto,  the  king's.  23,  61,  204, 

373;    in    the    Instrument   of 

Government,  328. 
Victoria,     441,     442  f.,     446  f., 

464.  491. 


518 


INDEX 


View   of   the   frankpledge,   72, 

73,  160. 
Village    community,    the    free, 

26,  38  f. 

Walpole,    Sir    Robert,    384  ff.; 

fall   of,    392  f . ;   earl   of   Or- 

ford,  393. 
War,  the  secretary  at,  351,  476 ; 

the  secretary  for,  476. 
War  of  1914,  effect  on  govern- 
ment, 495  ff. 
Wardship,  feudal  right  of,  66, 

131,  162. 
Warrants,  general,  419. 
Wellington,  duke  of,  430,  438, 

439,  444. 
Wentworth,  Sir  Thomas,  302  f ., 

305. 

See  Strafford,  earl  of. 
Wergeld,  31,  34  f.,  38. 
Whig  party,  369,  389,  396,  403, 

458. 
Wilkes,  John,  419. 
William    I,   conquest   of    Eng- 


land, 50  f . ;  his  canons  for 
government  of  the  church, 
60,  96. 

William  II,  character  of  his 
rule,  79  f.,  81. 

William  III  and  Mary  II,  355 
ff.,  362  ff.,  366  ff. 

William  IV,  455;  and  first  re- 
form bill,  438  ff. 

Wite,  the,  31,  84,  85. 

Witenagemot,  the,  14  ff.,  69. 

Wool,  as  source  of  revenue,  123, 
171,  200  f. 

Works,  board  of,  478. 

Writ,  the,  86,  105  f.,  114, 
154;  of  right,  107  f.;  prae- 
cipe, 108;  in  Magna  Carta, 
135  f. 

Written  constitution,  the,  323  f., 
326  f..  358,  494  f. 

Wycliffe,  212. 

York,  duke  of,  heir  of  Charles 

II,  343,  344. 
Yorkist  period,  236  ff.,  247. 


6  697     5 


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